The Kansas Supreme Court will be free to rule on several high-profile cases without fear of political backlash after the justices survived ouster campaigns Tuesday, according to attorneys.
Five of the court’s seven justices were on the ballot for retention Tuesday and all five were retained. In the coming months, the court is expected to rule on whether the state has unconstitutionally underfunded schools and weigh whether the state’s constitution guarantees a right to abortion.
The justices withstood ouster campaigns from anti-abortion groups, the Kansas State Rifle Association and the family members of the victims of Jonathan and Reginald Carr, but each justice on the court was retained with 55 percent of the vote or more.
“It takes the monkey off their back, so to speak,” said Mark Johnson, a Kansas City-based attorney who lectures at University of Kansas School of Law.
“It frees them up to rule the way that they believe they should rule without thinking that the voters are going to take them out the next time they’re up for retention,” Johnson said.
The court held hearings on school funding prior to the retention vote and will issue a ruling in the near future on whether the state has underfunded schools.
The current court would issue a ruling even if voters approved the justices’ ouster, but their retention ensures that the court will be able to enforce that ruling, said John Robb, an attorney for Wichita and three other school districts suing the state over funding.
“I think the current court would have decided the case on its merits whether they were ousted or not,” Robb said. “The difference it makes is what a Brownback court would have done in enforcing the ruling going forward. That would have become completely unpredictable.”
If any of the justices had been ousted, Gov. Sam Brownback would have been able to appoint their replacements after a state commission made nominations.
Robb said that a court made up of a majority of Brownback appointees could have “reversed 50 years of school finance jurisprudence.”
He said the retention of the current justices ensures “business as usual for the rule of law, as opposed to the rule of political extremism” when the court hands down its ruling in the near future.
Attorney General Derek Schmidt’s office, which is representing the state in the school finance case, would not comment on the retention results beyond saying that Schmidt “will continue to advocate for the state’s interests before the state courts and the judges who serve on them.”
Brownback said he was not involved in the ouster campaign. His political action committee donated $65,000 to Kansans for Life, one of the groups spearheading the ouster campaign, and another $25,000 to Kansans for Life’s PAC. After the retention elections, Brownback’s office said in a short statement that it was “important to have a public discussion about the future of the Kansas judiciary.”
Kansans for Life, the state’s leading anti-abortion advocacy organization, had campaigned to oust four of the justices up for retention in hopes that it would result in a court more likely to overturn a Shawnee County judge’s 2015 ruling that the state’s constitution’s guarantees a right to abortion.
The Kansas Court of Appeals upheld that ruling, which blocks a restriction on a common form of abortion from taking effect, by split decision in January. The state Supreme Court will hold oral arguments on the matter in the near future.
Kansans for Life’s executive director, Mary Kay Culp, said that if the court rules that the Kansas Constitution guarantees a right to abortion, then other abortion restrictions in state law will also become legally vulnerable.
“A lot of our interest at this point was because of this Court of Appeals decision,” Culp said, contending that the ruling, if upheld by the Kansas Supreme Court, creates abortion protections even broader than Roe v. Wade.
Culp and other anti-abortion activists are pessimistic about their chances before the state’s high court with its current makeup. Four of the court’s seven justices were appointed by former Democratic Gov. Kathleen Sebelius, an abortion-rights supporter.
“Yes, we’re concerned about what they’re going to do,” said Kathy Ostrowski, the organization’s legislative director.
“We’re concerned by their past rulings on grand juries and motions from abortionists in the past,” Ostrowski said, referring the court’s handling of a case involving Wichita abortion provider George Tiller before his murder in 2009. “When it comes to our stuff, they’re bending over backwards to please abortionists. ... It leads us to think that we’re not going to get a fair shake on that.”
The prospect of strengthened legal protections for abortion in Kansas comes at a time when there is uncertainty about whether Roe v. Wade would be repealed in the future if Republican President-elect Donald Trump has the opportunity to make multiple appointments to the U.S. Supreme Court.
“We can’t be certain how justices will rule in any case, but we are encouraged to see that the fair and neutral court systems in the state remains,” said Bonyen Lee-Gilmore, spokeswoman for Planned Parenthood Great Plains Votes, in an e-mail.
Lee-Gilmore said that her organization, which advocates for abortion rights, is “confident that impartial courts will continue to rule justly on unconstitutional policies restricting access to abortion, of which Kansas has a record-breaking number thanks to the Brownback administration.”
Julie Burkhart, the founder and CEO of Trust Women South Wind Women’s Center, which provides abortions in Wichita, called the Kansas court’s justices “thoughtful, fair and balanced” and said their retention gives her confidence that the court will weigh the right to abortion with impartiality. “Does it give me some level of comfort for when this case comes up before the Supreme Court in 2017? Yes, I feel more confident,” she said.