Those of us who write about politics in Kansas owe the state government a debt of gratitude for maintaining a constant supply of bizarre stories. Just when you think the Monty Python-level silliness is over, the bar is raised anew. Into this maelstrom of madness, we introduce the Kansas judiciary.
Separation of powers is one of the best elements of American government design. The idea was to place different opposing interests (like the general public and state governments) represented together where they needed to cooperate. Today, the federal government has moved away from the original separation of powers concept that guaranteed moderate compromise. Those compromises make government work in a limited capacity since most of the time compromise is impossible, which protects the public’s liberty. The courts were the weakest of the three branches, only involved after laws were passed, as freedom’s last defense. The system worked, maintaining federal balance until changes in electing the president and Senate forced everyone into one big constituency. Since then, the federal government has followed that one confused constituency into imbalance and dysfunction.
Does the dominant conservative faction in Kansas admire the dysfunction of today’s D.C.? If not, the Kansas disdain for D.C. chaos makes the separation of powers imbalance they are trying to create here even more confusing.
Gov. Sam Brownback clearly believes state government should be unified around the governor’s influence. Brownback remade the Legislature, and once the capitol dome became friendly territory, he turned to the courts. Even with two branches of government on his side, the court system still represented a constituency the governor wanted to silence. The governor wanted to remove every roadblock to his agenda, especially the court-mandated increases in education funding the Montoy and Gannon decisions represented. In 2014, the Legislature tried to strip the courts of independence by making chief judge appointments the responsibility of local judges rather than the Kansas Supreme Court. Knowing the courts would likely overturn such as a law as a violation of separation of powers, the Legislature inserted a poison pill into the bill that tied judicial branch funding to the new selection system. If the courts overturned the selection change bill, they would invalidate the entire judicial branch’s budget.
The message was clear: Leave the law unreviewed or constitutional lest you find your entire branch shuttered. The result was a classic game of political poker. The Legislature dared the courts to overturn the law, and the courts called that bluff last week. The Legislature is guilty of meddling with the courts, a crime the Constitution’s writers did not take mildly. Alexander Hamilton wrote in Federalist No. 78, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.” The expected talk from legislators of “activist judges” followed, of course, conveniently ignoring the fact that the Legislature’s unprecedented activist bullying tactics were what forced the courts’ hands. Docility was what the Legislature expected from the courts, who represent the last remaining circuit breaker against one-faction rule in the state.
If the courts had given in, the result would not simply be smooth sailing for lower taxes, but an unbalanced system dominated by a single faction. Exactly the kind of potential tyranny warned about in the Federalist Papers, and ironically the harbinger of the dysfunction conservatives see in Washington today. If the Legislature wants D.C.-style politics in Kansas, they’re doing their best to bring it here with every attempt to erase separation of powers.
Chapman Rackaway is a Professor of Political Science at Fort Hays State University.