Getting Direct About the Politics Behind Kansas’s August Amendment

Walking around my Wichita neighborhood over the past couple of weeks, I’ve noticed something about the yard signs encouraging people to “Vote No” on the constitutional amendment to allow for the popular election of Kansas Supreme Court justices come August 4. (Until just the past three days, I hadn’t seen with my own eyes any “Vote Yes” yard signs, but I have now seen a couple.) These yard signs are, in their color, font, and design, basically identical to many of the “Vote No” yard signs I saw around my neighborhood four years ago, when the vote to change the language of the Kansas state constitution so as to eliminate any judicial support for abortion rights was decisively defeated. Just look and see:

 

 

 

 

 

 

 

 

 

 

 

 

Relatedly, over the past few weeks my home has received about a half-dozen mailers encouraging a no vote this August. (We’ve received exactly one “yes” flyer thus far.) Two of those mailers were particularly emphatic, insisting that this vote is about keeping the Kansas Supreme Court “fair and impartial” and preventing “billionaire political donors” from influencing the justices by paying for the political campaigns judicial candidate would have to run to win a spot on the Court. I’ve no doubt about the sincerity of those who created these messages, and the arguments they’re making are entirely valid. But the fact that both were mailed by Planned Parenthood Great Plains, an organization dedicated to preserving abortion rights in Kansas, is worth noting nonetheless.

My point is simple. On the surface, the constitutional referendum Kansans will vote on this August 4 is simply a question about changing one of the elements of our state’s constitutional structure, a merit-based structure that emerged over 80 years ago, was first adopted in Missouri—Kansas adopted it about in 1958—and was quickly adopted by many other states concerned about corruption in partisan election judicial-selection systems that were then common (though in recent decades has been rejected by voters in multiple states seeking greater democratic accountability from their justices as well). But substantively, this constitutional referendum is actually a vote about possible policy outcomes—and while that’s usually not being said by those most engaged in the campaign both for and against the referendum, I suspect that pretty much everyone paying attention already knows it.

Earlier this month, Amii Castle, a law professor at the University of Kansas, said this quiet part out loud, using the very words of some of the strongest Republican backers of the amendment—Kansas Attorney General Kris Kobach, and Kansas Senate President Ty Masterson—to show that this proposed amendment is rooted explicitly in the failure of the 2022 anti-abortion amendment, and the desire to get different judges on the Supreme Court so as to get different rulings regarding abortion rights in Kansas. Knowing that, why shouldn’t those who want to defend those rights campaign on the same terms as well?

Castle, though, received some push-back on social media and elsewhere for being so explicit, with some of those opposed to the amendment insisting that constitutional principles of judicial neutrality supposedly protected through Kansas’s current, somewhat complicated system of choosing Supreme Court justices (nomination by a judicial commission, appointment by governor, and retention elections at the conclusion of a judge’s term) are the paramount concern.

As someone who teaches the arguments over those constitutional principles, I respect the claims of those—including some former members of the Kansas Supreme Court itself—who believe that Kansas’s procedure for choosing justices is worth preserving simply on its own terms. But as someone who is also theoretically suspicious of most efforts to keep the messiness of electoral politics out of the judicial side of our government, I find myself rather more appreciative of those who choose instead to present the possible policy consequences of electing the members of the Supreme Court more directly

Does this mean that I don’t respect Kansas’s system for choosing Supreme Court justices? Not at all—I can see the civic virtues of the prioritization of professionalism and at least nominal nonpartisanship in our selection process. But I can also see its democratic flaws. For example, the fact that despite numerous contentious decisions over the nearly 70 years during which this system has been in place in our state, not a single Kansas state Supreme Court justice has ever lost their retention election, provides—at least to my mind—just as much evidence of the limitations of the democratic checks upon our appointed state justices as do Kansas’s gerrymandered congressional districts when it comes to questions of democratic representation.

Many might challenge me right here—in what sense should “democratic checks” or “democratic representation” be at all relevant to the judicial branch in the state of Kansas, or anywhere else? Isn’t the judicial branch supposed to be counter-majoritarian, a set of referees and umpires who are not playing the political games of democracy, but who rather are simply imposing the apolitical rules and processes of the majesty of the law?

Responding to that challenge would require me to get into the “theoretical suspicions” I referenced above. Specifically, my two-fold suspicions that 1) the emergence of the idea of an independent judiciary actually does not match the historical struggle toward creating a system wherein the democratic sovereignty of the people was both recognized as legitimate and hopefully made somewhat compatible with good government (it is worth noting that, originally, judicial elections were seen as a way of ensuring judicial independence, by allowing “the people,” rather than legislative, professional, or political elites, to choose who will administer the courts); and 2) that the actual practices of preserving judicial independence from the messy political reality of a people working through their governing structure so as to exercise that sovereignty don’t actually accomplish what people—many of them judges—think they do. (As one scholar put it pithily over 25 years ago, stating calmly what millions who have watched the Roberts court rule on voting rights, presidential immunity, and more over the past 15 years, "The assumption that independent judges use their freedom to decide impartially according to the law is contradicted by the empirical evidence.")

But rather than hauling out my legislative supremacist bona fides and rehearsing my radical small-d democratic recriminations about judicial review and unelected and unaccountable judges, etc., etc., let me take the more reasonable route. If I might have at one time taken a more burn-it-all-down position, age—and the lessons of Donald Trump’s presidency—have made me more sympathetic to finding ways to preserve the accomplishments of bourgeois constitutionalism, even as we need to focus radical critiques more directly to where changes to its legal and socio-economic structures are most needed. In the meantime, I agree that it’s important that we retain at least some belief in the supposedly non-partisan, supposedly apolitical character of the judiciary—what another scholar called the “secular religion of constitutionalism,” the faith that the “rule of law” will continue to work so long as we “believe it works.” The complicated, practical question is, to quote one more legal theorist, “when (if ever) does the cost of enabling judges to act upon their political preferences or attitudes by insulating them from democratic accountability exceed the benefits of protecting them from threats to their tenure that compromise their capacity to adhere to the rule of law?”

Viewed this way, the proposed amendment to be voted on in Kansas this August really comes down to a specific accounting of likely political costs. For me, that means that Kansas’s merit-based system for selecting judges has, simply for a variety of unpredictable historical, political, and sociological reasons—the occasional tendency of Kansans, as an unconscious counter to the overwhelming Republican majorities elected to the state legislature, to elect Democrats to the judicial-appointment-making governorship? the concentration of Kansas lawyers (and thus possible members of the Kansas Supreme Court Nominating Commission, or for that matter actual possible Supreme Court candidates) in a handful of more urban, actually growing Kansas counties? something else?—worked pretty well, insofar as protecting basic liberal rights are concerned. Hence, my appreciation of those who look at the campaign over this proposed amendment, like the makers of the yard signs I mentioned above, and see it in terms of the substantive political possibilities inseparable from it.

When defenders of the current system make it a matter of high principle—judicial impartiality!—I can’t help but want to dive into the relevant theoretical and historical arguments, and ask for evidence why I should believe that the highest court in our state judiciary somehow would be fundamentally broken by obliging it to operate like the state supreme courts of more of more than 20 other states. But if you just make it all about the politics which arguably are unavoidably interwoven into any judicial decision anyway? Then my vote—especially since the language of the amendment gives no guarantee that any hypothetical election system that our Republican legislature may set up would be non-partisan or based on particular districts, both of which are in my opinion good balancing tools when it comes to electing judges—is clear. And my bet is that, remembering 2022, the votes of most other Kansas will be the same.