Tired of being told the law doesn’t allow them to enact their radical overhauls of the social contract, Kansas Republicans are out to eject their state Supreme Court justices.
Lawmakers in the state are pushing to replace the American tradition of checks and balances among the three separate branches of government. A bill narrowly passed the state Senate in late March that would give legislators far broader power to impeach judges from the high bench.
Today, judges may be impeached for “treason, bribery or other high crimes and misdemeanors.” Senate Bill 439 would tack on dozens more words, many of them so vague and subjective that the law would effectively give lawmakers veto power over the court.
If lawmakers decide the court is “attempting to subvert fundamental laws and introduce arbitrary power,” “exhibiting discourteous conduct toward litigants,” or “attempting to usurp the power of the legislative or executive branch of government,” they could move to boot justices from office.
The bill barely passed the state Senate, 21–19, in late March. A House committee has yet to take it up, state legislative records indicate.
Conservatives’ beef with the court dates back years. Justices have stymied the right on a handful of social issues, including death penalty and reproductive rights cases. But the temperature of the dispute turned up rapidly as the consequences of Gov. Sam Brownback’s (R) real-life experiment in radical right-wing economic policies started to hit the state.
Kansas has lost hundreds of millions of dollars in revenue since Brownback and his allies slashed taxes for the rich and eliminated all income taxes for hundreds of thousands of business entities regardless of whether or not they have actual employees. Things got so dire that at one point the state arranged an auction of sex toys to recoup a relatively small amount of money from an adult store owner who’d cheated on his taxes.
With the state’s balance sheet in tatters, lawmakers scrambled to find enough money to keep public schools open. The state’s high court has repeatedly found these fiscal gymnastics illegal on the grounds that they short-change the state’s children to such an extent that they violate lawmakers’ constitutional requirement to provide an education to Kansan kids.
In early 2014, justices ruled that lawmakers had shortchanged low-income districts and ordered reforms. But to come up with $129 million in state aid money for those districts, the legislature slashed funding from other essential functions of the school system rather than curtailing Brownback’s tax policies.
State leaders shuffled the deck chairs around again the next spring, prompting some schools to cut the academic year short for lack of funding. That episode prompted the state Supreme Court to rap Republicans on the knuckles again this February.
Just before that decision, Brownback launched a loud public campaign against the judges. They weren’t simply enforcing a core tenet of the state’s founding document, he said in his State of the State speech. They were, Brownback said, interfering with “the people’s business, done by the people’s house through the wonderfully untidy — but open for all to see — business of appropriations.” In the governor’s version of the story, the elected politicians subverting a 50-year-old legal protection for low-income K-12 students were actually noble custodians of the popular will and the judges who insist he follow the law are usurping democracy.
The impeachments bill is only the latest in a string of attempts to reduce the state’s independent judiciary to a lapdog for elected officials. State Republicans previously tried to starve the court of funding and take away its authority over lower courts in Kansas. The court found the latter of those laws unconstitutional after Brownback signed it, and lawmakers have since reversed course on the funding power-grab as well.
The supply-side extremists aren’t done trying to muscle the court into ignoring the state Constitution. Some lawmakers have proposed electing state Supreme Court justices rather than relying on an appointments system based in the legal profession. That idea hasn’t gone far, and it remains to be seen if the House will approve the impeachments bill that barely cleared the Senate.
And this fall, voters will get to weigh in. While the state’s high-court judges are appointed, they must periodically be “retained” at the ballot. Five out of seven spots on the bench are up for retention votes this year. Such retention votes used to be pro-forma, but as The New Yorker noted in February, that seems to be changing in certain parts of the country. Iowa voters fired three judges in 2010 after that state’s Supreme Court struck down a same-sex marriage ban. Illinois’ Chief Justice had to scramble to keep his seat that same year amid a smear campaign designed to oust him.