What’s alarming is that they are succeeding: Their efforts in Kansas, Wisconsin, and North Carolina have passed into law. These politicians want to rewrite the definition of justice from being blind to being blindly partisan. If citizens don’t stand up against these attacks, they may not be able to count on their constitutional guarantee of a fair day in court.
Kansas is over the top among states engaging in court-bashing this year. Legislators in Topeka have made no secret of their unhappiness with the Kansas Supreme Court’s rulings about funding public education and a constitutional crisis could be on the horizon. Recent headlines are asking whether the entire court system may be shut down.
The legislators’ blitz has included proposals to give Gov. Sam Brownback more control over selecting State Supreme Court justices, or switch from a merit-based appointment system to contested elections; to permit the recall of these judges; to lower their mandatory retirement age; and to make it easier to impeach them, even if it’s just for views that clash with the legislature’s. These unsuccessful bills would have made it easier to dump judges who hew to the law, not politics.
What the Kansas legislature actually did pass, and Brownback signed into law, is narrower but no less audacious: a measure to defund all Kansas courts if any state judge overturns a 2014 law removing the state Supreme Court’s authority to select 31 chief district judges. Could the message be any clearer? “Decide a legal case the exact way we want, or we’ll put you out of business.” This month, after a judge struck down the judicial-appointment law for violating the separation of powers, the court-defunding law is now facing a constitutional challenge in court.
In Wisconsin, legislators pushed through a ballot initiative this year on a party line vote to amend the state constitution, laying the foundation for replacing a liberal, longtime chief justice in the middle of an elected term of office, with a conservative one.
And that’s exactly what happened. The court’s conservative majority voted quickly, by email, for the change in leaders. This consolidated political clout on a court that has subsequently quashed a campaign finance probe, with several special interest groups under investigation.
Finally, in North Carolina, legislators passed a bill changing the way elected Supreme Court justices go about seeking a new term. They will have an option to run in retention (up-or-down) rather than contested races. Gov. Pat McCrory, a Republican, signed the bill into law and it takes effect next year.
Although supporters say it would help remove the influence of money in judicial elections—always a good idea—there’s more to this than meets the eye. Voters in retention elections typically keep incumbent judges. And judges running for retention don’t have to face an opponent. The first North Carolina Supreme Court member to be affected by the new law? A Republican judge now sitting in the majority in a 4-3 split on the state’s highest court. If the old law were standing and voters toppled the Republican judge in a contested election next year, the conservatives would lose their majority. The process is being changed not to insulate the judiciary from political pressure, but instead to serve political ends.
No matter which party is responsible, there is a growing tide of pressure around our courts, and every American needs to worry about it. In Oklahoma and Washington state, elected politicians recently threatened to impeach judges over controversial rulings. If judges can’t make hard calls based on the law, without looking over their shoulder at threats of political retaliation or manipulation, it will become harder for them to uphold the Constitution and protect people’s rights.
And if Americans don’t stand up, then their political leaders won’t stand up for them. This year’s offensive in state legislatures to inject partisan politics into the courthouse has demonstrated that fact. The executive and legislative branches must be reminded of their duty to respect and understand the role of the courts, and to fulfill their responsibilities to ensure that courts can be fair and impartial. And we, the people, have to get involved on multiple fronts to protect courts’ abilities to carry out their vital mission.
Liz Seaton is the Interim Executive Director for Justice at Stake Campaign.