Brace yourself for anti-court campaign

Thursday’s special session of the Legislature may result in a temporarily curative response to the Kansas Supreme Court’s order about public school funding – or not.

But this is certain: It will be a landmark in a long, ill-conceived campaign to persuade voters to dismiss four of the five justices who face retention votes in November.

The campaign will have heft behind it far beyond the anemic persuasive powers of failed legislators held in disdain by about 70 percent of Kansans. Look for Koch-backed groups to drive the issue, joined by an unsettling number of people who believe that public education is an unnecessary drain on the economy and their pocketbooks.

Among the emotionally fraught but flimsy talking points you will hear:

“Unelected, activist judges” are “usurping the Legislature’s exclusive power to spend public money” and “destroying the constitution’s vital separation of powers” while “closing the schools over less than 1 percent” of the public education budget.

People who make those arguments, including candidates in the upcoming August primary elections, must be asked:

▪  What do they mean by “activist” justices? If that means justices who vote to reject laws passed by duly elected bodies such as legislatures and city councils, then it clearly applies to the U.S. Supreme Court’s Clarence Thomas and the late Antonin Scalia, conservative icons who over the past decade were that court’s most consistent votes for negating legislative actions. Apparently “activist” justices simply means those who don’t vote your way.

▪  If, by declaring educational funding unconstitutional the court is “usurping” and “violating the separation of powers,” what can one label the Legislature’s threats to pass laws defunding the courts or limiting their authority without constitutional amendments? And would those actions not be usurpation of the public’s exclusive right to amend the constitution?

▪  Who is “closing the schools” when the court’s decision requires only that the Legislature obey the constitution and that the executive branch not spend money except by lawful means? The core of the present case is the principle of “equity” of spending among districts, not the actual amount of money, so the difference between 1 percent and 50 percent is irrelevant if inequity exists.

So what are the consequences if the campaign succeeds and four justices are voted out?

The morning of Jan. 9, 2017, a majority of the seven will be gone en masse, and Gov. Sam Brownback will have the final say on replacements.

The six-year-long Gannon v. Kansas school case (and other pending cases) might have to be reargued unless the four new justices recused themselves. And if four did so, the three remaining justices could do nothing because the constitution requires at least four to hear and decide any case.

That’s a high price to pay for making a partisan game of the rule of law.

This story was originally published June 21, 2016 at 12:04 AM with the headline "Brace yourself for anti-court campaign."