JURIST Guest Columnist Lawrence Friedman of New England Law | Boston discusses how the 2015 Kansas bill is a no-win situation for the people of Kansas…

Constitutional litigation is, in a sense, politics by other means. Advocates of individual rights look to judges to be their knights, guardians against legislative overreach. But the judges who rule in their favor may well be seen by legislators and governors as mere pawns of special interests, upsetting hard-wrought legislative accommodations and compromises and overstepping the bounds of judicial review.

Such a scenario recently has been playing out in Kansas. There, plaintiffs filed a lawsuit alleging that the levels at which the state funded the public education system were inadequate under Article 6, Section of the state constitution. In a 2014 decision [PDF], the state supreme court agreed. Lawmakers balked, arguing that the court had impinged upon their constitutional appropriations authority. In a move that seems more than coincidental, the legislature, led by the Governor Sam Brownback, moved to trim the high court’s sails through a law, stripping the supreme court of some authority to control lower courts. Then the legislature doubled down, by threatening to eliminate funding for the judiciary should the courts find that law unconstitutional.

This is not the first time a state judicial system has been threatened by the political departments merely for exercising the power of judicial review, and it is not likely to be the last. Still, events in Kansas put into sharp relief the practical obstacles to the ability of state courts to give life to many state constitutional provisions intended to compel government to act affirmatively on behalf of the citizenry.

As the political scientist Emily Zackin has explained in her book, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights, [PDF] many state constitutions obligate government to act in various areas of public life, including education, fair labor conditions and the quality of the environment. These kinds of provisions stand in contrast to the typical federal constitutional individual rights protections, such as the right to free expression, which act negatively, to prevent government from acting.

That the positive rights provisions of state constitutions are often under-enforced should come as no surprise. Though a court may acknowledge that a particular provision requires government to take steps to, say, protect the environment, such acknowledgement does not necessarily lead a court to order the necessary relief. When a court orders the political branches to act, there is always risk—that the legislature or the governor will simply ignore the court’s decision or seek to punish the court in some way. This could be accomplished through a state’s budget process or by making changes to the judicial selection process. Such a response to the practical effects of judicial review could, at a minimum, undermine the judiciary’s legitimacy.

The situation in Kansas is arguably more extreme. One part of a 2015 bill [PDF] allocating money for the judiciary provides that, should a state court overturn the 2014 law that removed from the Kansas Supreme Court the power to appoint chief judges for the district courts and set district court budgets, the judiciary will lose all its funding. In other words, the political departments responded to their displeasure with the Kansas Supreme Court in two ways: first, by seeking to reduce the supreme court’s authority over the lower courts and, second, by threatening to eliminate any allocation to the courts system should a court hold the 2014 law in conflict with the constitutional grant to the supreme court of “general administrative authority over all courts in th[e] state.”

The 2014 law is in fact being challenged—by one of the state’s district court judges. Thus the Kansas courts appear to face a Hobson’s choice: either bow to the effort by the political departments to wrest some authority from the supreme court over the judiciary itself, by finding the 2014 law to be constitutional; or hold the relevant provisions of that law invalid and risk the loss of funding for the judiciary.

Either way, of course, the judiciary loses. As Alexander Hamilton observed of the federal judiciary, state courts are possessed of neither the purse nor the sword. They must make budget requests in the same way as any state-funded entity and, unlike many of those departments of government, the courts have no natural constituency that will rally to their support. Indeed, most citizens are likely oblivious to the work of the judiciary until they have need of the courts or are brought before them—perhaps in the context of a marriage beyond repair, a contractual commitment broken or in connection with criminal charges.

And, either way, the people of Kansas lose. If the 2014 law ultimately is upheld, it will become clear that the legislature does not really consider the judiciary to be an independent and co-equal branch of government—and citizens will have good reason not to trust in the hope that the courts will, for example, enforce the positive obligations imposed on the government by constitutional provisions like Article 6, Section 1. Further, should a court strike down the 2014 law, the judiciary then will be denied the resources needed to fulfill its constitutional responsibilities—hearings, trials and appeals will be delayed; motions will go undecided; justice will not in any real sense be promptly and efficiently administered. Brownback and his allies in the legislature will have succeeded in diminishing public confidence in the state’s judicial system.

It did not have to come to this. Article 15, Section 14 [PDF] of the constitution requires every member of the Kansas legislature—and the governor—to swear an oath when taking office to “support … th[e] constitution of the state.” That means respecting what the state supreme court says the state constitution means, even when you do not like it.

When faced with a legitimate constitutional case or controversy, courts have an obligation to resolve it and determine the meaning of the constitution in light of the facts presented. They are aided in this task by recourse to constitutional history and judicial precedent: they will interpret the text using these guides and effectively have little control over whether they will later be regarded in a particular case as having acted as knights or pawns. Inevitably they will make decisions about a state’s constitutional commitments with which legislators and governors will take issue—that is the nature of judicial review in a constitutional democracy. But the ability of courts to act as an independent check on the exercise of public power would mean little if the fear of political disagreement with their conclusions factored into their deliberations.

Professor Friedman teaches Constitutional Law at New England Law | Boston and is co-editor, with Robert F. Williams, of State Constitutional Law: Cases and Materials (5th ed. 2015).

Suggested citation: Lawrence Friedman, Kansas Politics By Other Means, JURIST – Academic Commentary, July 1, 2015, http://jurist.org/academic/2015/07/lawrence-friedman-kansas-politics.php.