The court's defining moment

The Taft administration was put in the uncomfortable position last week of having to argue that the Ohio Supreme Court is obliged to create public records law that doesn't appear in the state Constitution and isn't codified in the Ohio Revised Code.
That would seem to be a textbook case of legislating from the bench or practicing judicial activism, something Republicans in the state have been decrying for years. Indeed, Ohio Supreme Court rulings on tort reform and funding for education were held up as examples of the kind of judicial activism that required the removal of Democratic Supreme Court justices from the bench.
So now that six of the seven justices on the court are Republicans, how will they respond to the legal arguments made by Gov. Bob Taft's lawyers that Ohio governors are entitled to the same executive privilege of a U.S. president, even though there's no state law to back-up the theory?
Cause for concern
Strict constructionists and other judicial conservatives might be alarmed by a locution uttered by Chief Justice Thomas J. Moyer. This case, Moyer said during last week's hearing, "would be the first time to write a law [about executive privilege} to bind future governors. Hopefully, we can write a law that is clear enough."
We thought the legislature writes laws. The court only interprets. If "executive privilege" doesn't appear in the Ohio Constitution or in the exceptions written into the Ohio Public Records Act, there doesn't even seem to be anything for the Ohio Supreme Court to interpret -- especially not a court whose members were elected on pledges that they would not legislate from the bench.
The argument arose in a suit filed by state Sen. Marc Dann, D-Liberty, who wants access to correspondence between Taft and some of his aides and cabinet members regarding activities at the state Bureau of Workers' Compensation. The bureau lost about $300 million on bad investments in recent years, including a large portion of $50 million that was entrusted to Thomas Noe, a Toledo coin dealer and heavy contributor to Republican politicians.
If ever there was a case in which the Supreme Court should find it easy to rule in favor of the public's right to know, it is one involving the question of whether a thief was given back-door access to the public treasury.