Rule of Law: We Used To Fight Revolutions Over This
Mar. 17, 2016 (Mimesis Law) — Some Kansas senators have grown annoyed by recent decisions of various judges and courts. One was in the case Kansas v. Carr, in which the Kansas Supreme Court twice overturned a death sentence imposed on a pair of spree killers. The first time, in 2004, the Court actually overturned the state’s entire death penalty law; only to be reversed by the U.S. Supreme Court. In 2014, they again overturned the Carrs’ death sentences because of issues relating to a joint trial and to jury instructions in the punishment phase, and were again overturned.
Another disfavored decision was in State v. Murdock, which involved the calculation of sentences based on prior offenses before and after Kansas’s adoption of a determinate sentencing scheme. The upshot of the case was that some inmates would be released earlier than they would have been had the decision gone the other way. Other cases to which the esteemed Senators gave the side-eye were non-criminal, such as a dispute over the ballot in the 2014 election for the U.S. Senate, and a school funding dispute.
Faced with the outrage of a court issuing rulings they disagreed with, the Governor and the Legislature tried to eliminate the Kansas Supreme Court’s ability to appoint the chief judges of the district courts, then threatened to eliminate funding for the court system if the law was overruled.
Essentially daring the Legislature to try to shut down the state court system, the Kansas Supreme Court ruled Wednesday that the lawmakers overstepped their authority by trying to strip the Supreme Court of its authority to select chief district judges across the state.
The ruling appears to trigger a “non-severability clause” that the Legislature wrote into law, designed to defund the court system if justices were to strike down the provision on selecting chief judges. The Legislature wanted chief judges chosen by election of the judges in each district.
In their opinion issued Wednesday, the justices said the possibility of court funding being cut off didn’t affect their decision, which was based on the constitutional principle of separation of powers between branches of government.
Senate then upped the ante and recently passed Senate Bill 439, in which they decided that an independent judiciary was unnecessary. The bill is a real piece of work. It says that:
[T]he grounds for such impeachment or for such discipline, suspension or removal for cause shall include, but not be limited to, any one or more of the following…
(f) failure to perform adequately the duties of office;
(g) attempting to subvert fundamental laws and introduce arbitrarypower;
(h) attempting to usurp the power of the legislative or executive branch of government;
Of course, the meaning of “adequate performance,” “subversion of fundamental laws,” “arbitrary power,” and “usurpation of the power of the legislative or executive branch” is left to the Legislature to determine. Running the text of the bill through my phone’s Bullshit Translator app, the Kansas Senate has just passed a bill that basically says, “We can impeach judges for making rulings that we disagree with.”
An independent judiciary is one the foundation stones of the rule of law. That’s the whole point of having different branches of government. I could go on about this, but it was covered by Alexander Hamilton in Federalist No. 78 (in prose, though, not in rap):
If it be said that the Legislative body are themselves the constitutional judges of their own powers… It is far more rational to suppose, that the Courts were designed to be an intermediate body between the People and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the Courts. (Emphasis added)
That’s the foundation of the rule of law, and the one of the cornerstones of what so-called conservatives are so fond of pointing out: America is a republic, not a democracy. And, because of Article IV, Section 4 of the Constitution, so is Kansas.
The Kansas Legislature has gone from chipping away at the independence of the judiciary to attempting to blow it up with dynamite. This is the sort of thing that we used to fight revolutions over. In the list of grievances against the King in the Declaration of Independence, Jefferson included:
He has made Judges dependent on his Will alone, for the tenure of their offices,
and the amount and payment of their salaries.
So what happens if the bill goes through? That’s also been foretold:
Here is naught unproven—here is naught to learn.
It is written what shall fall if the King return.
He shall mark our goings, question whence we came,
Set his guards about us, as in Freedom’s name.
He shall take a tribute, toll of all our ware;
He shall change our gold for arms—arms we may not bear.
He shall break his judges if they cross his word;
He shall rule above the Law calling on the Lord.
King Brownback and his toadies in the Legislature are attempting to throw away a principle that dates back to the founding of the Republic, and even further, to the Magna Carta. Hopefully, someone has the guts to stop them.
 I made the app up, so don’t go Googling it.