Archive for the 'Court Bashing' Category
Supreme Court Justice Antonin Scalia engaged in some court bashing of his own when the court heard oral arguments in two death penalty cases from Kansas this week, Mark Joseph Stern writes at Slate.
The Kansas Supreme Court set aside death sentences for Jonathan and Reginald Carr in a 2000 crime spree and ordered new sentencing hearings. The rulings spurred a backlash and political sparks in Kansas (see Gavel Grab), and the state of Kansas appealed to the nation’s highest court.
During oral arguments, Scalia said that perhaps Kansans, “unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it, which might suggest that a retention Read more
Commending to its readers an upcoming local session of the Kansas Supreme Court, a Garden City Telegram editorial excoriates Gov. Sam Brownback and allied “ultraconservatives” for partisan attacks on state courts, in order to control them:
“Brownback’s more determined than ever to ease the path for his agenda, to include controlling the judicial branch and erasing any hope of checks and balances in place to prevent absolute power.
“Kansans should be appalled. An independent judiciary, one free from control by outside forces, is indispensable to our democracy — regardless of what the governor may believe.”
A challenge by four district court judges of a Kansas law threatening to defund the entire Kansas judiciary has been moved from state to federal court.
The Associated Press reported that Kansas moved the case, contending that the litigation constitutes a federal due process claim. The lawsuit is challenges a state law provision that critics say is the latest attack by elected Kansas officials on fair and impartial courts (see Gavel Grab).
A Kansas law professor has looked closely at the law and a one-two punch aimed by the legislature at Kansas courts, and in an academic essay, he raises pointed questions about the legislature’s intentions.
Professor William J. Rich of Washburn University School of Law lays out in his Jurist essay the legislative history that has led to a challenge by four district court judges of a state law threatening to defund the entire state judiciary (see Gavel Grab). The defunding provision was written to be triggered if a court struck down another statute, removing the Supreme Court’s authority to appoint chief district judges, and indeed a judge has ruled that law invalid.
Washburn does not hurry to conclusions but writes about the legislature, “The argument that the legislature wanted to threaten the judiciary to gain leverage in litigation gains credibility from a variety of other Kansas legislative proposals that have circulated within the statehouse. The same legislators who challenged the state’s supreme court authority to appoint chief judges also debated plans for changing the process of selecting judges, limiting their tenure in office and limiting the state supreme court’s jurisdiction. Their alternative ‘court-packing’ plans would have made Franklin Roosevelt blush.” Read more
With controversy simmering over whether Kansas could face a shutdown of its entire court system at the hands of the legislature, a retired district judge has weighed in with his concerns.
“It’s a very real crisis. There’s a genuine chance that the judicial branch will shut down,” retired Judge Don Noland told KOAM for its report on the controversy, involving a budgetary provision to defund the courts that was written by the legislature. It was written to be triggered if a court struck down a separate law removing some authority of the Kansas Supreme Court, and that scenario has occurred.
However, a sitting district court judge recently ordered that the defunding measure not be enforced until mid-March (see Gavel Grab), when the legislature is in session, and some analysts believe the situation has calmed. “[A]n outrageous attempt to intimidate the state’s judges thankfully is unraveling,” Davis Merritt writes in a Wichita Eagle opinion. Read more
At the request of Kansas Attorney General Derek Schmidt, a district court judge ordered on Tuesday that a law to defund the state judiciary could not be enforced until mid-March, when legislators will be back at work.
“This delay should eliminate talk of any ‘constitutional crisis,’ except perhaps among outside groups itching for a fight, and will give every Kansan involved an opportunity to thoughtfully reassess the situation,” Schmidt said, according to the Kansas City Star.
The defunding provision has caused widespread concern that the entire Kansas court system could face a shutdown. Legislators had written the provision to go into effect if any court struck down another law they wrote, taking away authority of the state Supreme Court to name chief district judges (see Gavel Grab for background). Read more
Finding topics of importance to Kansans in a Justice at Stake op-ed about assaults by elected politicians on impartial state courts, a Kansas newspaper has republished the commentary.
JAS Interim Executive Director Liz Seaton’s op-ed, published earlier this month by Talking Points Memo (see Gavel Grab), was picked up by a Wichita Eagle blog. The blog version was headlined, “Liz Seaton: Kansas not alone in trying to politicize courts.”
Elected politicians have tried to bully, politicize, or pack impartial courts, Seaton wrote, and in at least three states — Kansas, Wisconsin, and North Carolina — these efforts became law. “These politicians want to rewrite the definition of justice from being blind to being blindly partisan. If citizens don’t stand up against these attacks, they may not be able to count on their constitutional guarantee of a fair day in court,” she wrote. Read more
Is a political strategy pursued by Kansas legislators unhappy with state court rulings one that could be used elsewhere, to dissuade the courts from overturning state laws? A KMUW report suggests that’s the case.
First the Kansas legislature passed a law removing the state Supreme Court’s authority name chief district judges. Later, it passed a law saying that if a court overturned the first law, funding for the entire courts system would be eliminated.
“At a political level, this sort of direct confrontation between the legislative and judicial branch may be a sign of things to come in other states as well,” said University of Kansas Law Professor Richard Levy.
A Shawnee County court has struck down the judge-appointment law but placed his ruling on hold to allow an appeal (see Gavel Grab).
In numerous states, 2015 already has become a banner year for court bashing by elected politicians, Justice at Stake Interim Executive Director Liz Seaton writes in a commentary published by the Talking Points Memo:
“Are state legislatures breaking all records for attempts to rig our courts? The results are still coming in, yet it appears to be a banner year for elected politicians trying both new and well-established ways to bully, politicize or pack impartial courts.
“What’s alarming is that they are succeeding: Their efforts in Kansas, Wisconsin, and North Carolina have passed into law. These politicians want to rewrite the definition of justice from being blind to being blindly partisan. If citizens don’t stand up against these attacks, they may not be able to count on their constitutional guarantee of a fair day in court.”
A Kansas City Star column by Steve Rose was headlined, “Watch for an assault on the Kansas Supreme Court,” and it mentioned efforts in Topeka to change the way the Kansas justices are chosen and elections next year in which five of seven justices will be up for retention.
Proposed alternatives to the current merit selection method of selecting Kansas Supreme Court justices “would reduce independence and politicize the process,” Rose warned. “The high court should change through evolution, not revolution. Justice is too important to be subjected to the whims of politics,” he added. Read more