The Kansas Legislature is considering a proposal to remove school finance from constitutional review by the Kansas Supreme Court. This proposal is both ill conceived and would endanger the very central structure of Kansas government and law. The proposals themselves arise not only from legislators’ anger at the court’s decisions in several cases, but, also, from a profound misunderstanding of the role of the Supreme Court in a constitutional system of checks and balances.
The legislative critics of the Supreme Court’s decisions in Gannon and related cases seem simply to not understand the role that judges must fulfill in the constitutional process of judicial review. Judges do not render opinions according to their own beliefs or inclinations. Instead, a judge’s constitutionally defined function is to decide whether a particular statute complies with the law of the state, as it is codified in the Kansas Constitution and decisions interpreting the constitution. Judges’ decisions in the judicial review process are bounded by the language and existing judicial interpretations of the state constitution. If a court decides that a law violates the constitution then it is up to the Legislature to produce a law that does not do so. After careful review in a fair and impartial process that is precisely what the Kansas Supreme Court has said in its school finance decisions. The court found that the current school funding law violates the constitution. Now, in order for schools to keep operating after June 30, legislators must pass a school funding law that complies with the constitution.
Thus, the only appropriate basis for criticizing judges of the Kansas Supreme Court in their judicial review function is if they do not interpret the constitution or follow existing cases interpreting the constitution faithfully. I have seen no evidence of that having occurred. In the absence of such unfaithful behavior, when the court holds that a statute passed by the legislature is illegal, i.e. does not comply with the state constitution, then the Supreme Court is doing precisely what it is supposed to do. It is protecting the constitution and, thereby, protecting the people’s rights provided in the constitution. This is the essence of our system of “checks and balances.” This system protects us, the people of the state from governmental tyranny. Without judicial review and “checks and balances,” every bill the Legislature passes and the governor signs will become law without anyone asking whether that law is constitutional except those who passed it. To give such power to any branch of government can easily lead to tyranny. The Supreme Court acts as the ultimate protector of the people’s will as expressed in the constitution by exercising its review function.
When the Legislature proposes to remove constitutional overview in an area covered by the state constitution, they not only destroy the critical system of checks and balances that have assured our liberty for generations, they also take onto themselves greater power than ever the founders of our state and nation envisaged for them to have.
If the Legislature is unhappy with the Supreme Court’s decisions in the school finance cases or in the criminal cases that have also come under attack I believe that the honest and proper course for them is to propose a constitutional amendment that removes school finance from the state constitution. This would let the people of Kansas decide openly whether they want to have education continue to be a constitutional right. But to leave the provision on the right to an adequate education in the constitution and remove any overview from the courts is simply to take away any checks on what would then be the unbridled power of the Legislature in this critical governmental area. To my mind, that constitutes the first steps to tyranny.
Mike Hoeflich is a professor with the University of Kansas School of Law.