Topeka Legislators were handed the hot end of the branding iron this summer when the Kansas Supreme Court told them to spend more money on education. Come January, lawmakers are going to remember who blistered their fingers.
Many legislators, especially conservative Republicans, were furious when justices ordered them to find an extra $143 million for schools, forcing a special session. While efforts to rein in the court failed then because House Republicans didn't have the votes, the issue remains alive in the minds of many.
Three proposed constitutional amendments are floating, one to require Senate confirmation of Supreme Court nominees and two others to keep judicial hands off school funding.
Senate Majority Leader Derek Schmidt, R-Independence, said judicial confirmation awaits action in his chamber when the lawmakers return Jan. 9. Like any proposed constitutional change, it needs a two-thirds legislative vote and then ratification by voters in a statewide election.
"It's taking a step to ensure that the public continues to sees the court as a legitimate institution. It goes to the question that is raised in coffee shops: 'Who are these seven people and why do they get to decide?'" Schmidt said.
Democratic Gov. Kathleen Sebelius appointed two justices and could appoint more if she wins a second term. Republicans aren't excited by the possibility, and Senate confirmation gives them the final word.
"For a Republican state, Republicans sort of expect to appoint the Supreme Court justices, and they aren't guaranteed that. This could be an attempt to solve that problem," said Bob Beatty, Washburn University political science professor.
In January, ruling in a lawsuit against the state, the court said the Legislature failed its constitutional mandate to make "suitable provision" for funding education. After the session ended, the court ruled legislators still had failed, prompting the 12-day special session where lawmakers spent much of their time trying to strike back at the court.
"The court determined the Legislature failed to carry out its constitutional mandate and based that on the evidence presented," said Bill Rich, Washburn University law professor. "The court did define `suitable' in this case because that is their responsibility, to determine what the words of a constitution mean."
Legislators argue it's not about whether they came up short in the responsibility department but a case of the justices crossing the separation of powers line.
"The underlying problem is still there, and from our perspective, it is a judicial intrusion into the power of the purse," Schmidt said.
What legislators are proposing doesn't surprise Allan Cigler, University of Kansas political science professor.
"When you don't like the decision, you change the court," he said.
One proposal would declare that the judicial branch has no authority to tell legislators how to spend money. Supporters say it would restore the balance of power, but others disagree.
"The amendment is a sneaky end run around the issue without expressly dealing with it," said Jeffrey Jackson, Washburn University law professor. "That is an attempt to address the school finance decision without really appearing to."
Another proposal would strike the phrase "suitable provision" from the constitution and make clear only the Legislature can determine education spending. Removing that phrase removes the Legislature's constitutional imperative.
"If the Legislature has control, they can go back to the funding levels they deem adequate as opposed to what the court deems is appropriate," said Joe Aistrup, head of the Kansas State University Political Science Department.
Lawmakers await a legislative audit spelling out what "suitable provision" translates to in dollars.
"If the numbers from that study are high, there will be enormous pressure to change the constitution so the courts won't be able to rule on an education finance bill," Aistrup said.
One reason conservative Republicans are livid is they built their political fortunes on cutting taxes.
"They are seeing their work of 12 years being turned back by the court rather than the voters," Aistrup said. "They have worked long and hard to cut taxes and they see the court as undoing all they have tried to do."
Whether voters ever will have a say depends on House Democrats, who managed to block efforts in their chamber after the Senate signed off on constitutional changes during the special session.
Meanwhile, the Supreme Court isn't exactly defenseless. For instance, it could declare education a fundamental constitutional right, making it an even harder battle for the Legislature to win.
The possibility isn't that remote. Earlier this month, three justices said they consider education just that. It would only take one more justice to make it a reality.