To some of us, whether we are in government or as citizens, the Kansas Supreme Court’s recent actions striking down the 2015 school-finance scheme could be seen as a wrongful power grab. Nothing could be further from the truth. The independence of the judiciary is not maintained for the benefit of the judges. It is for us — free citizens of a democratic republic governed under rule of law — for whom the courts stand open as fair and impartial tribunals.
Of all the evils listed in the Declaration of Independence, none was worse than the colonial judges’ complete dependence upon the king. As Thomas Jefferson penned, “(King George III) has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” Having experienced life under a system where judges bowed to political pressure, instead of standing up for the rights of the people under law, the founders were determined not to repeat that mistake.
Our founders were right on this score. Consider two recent examples where we, the people, needed an independent judiciary to strike down legislative acts to protect our rights:
l When the D.C. legislature banned all handguns, an overwhelmingly popular law, the independent courts were there to exercise their duty to strike this law as a violation of the people’s right to bear arms.
l When Gov. Kathleen Sebelius’ administration attempted to condemn property without first ensuring that all the creditors were paid, our independent Kansas judiciary was there to find the this conduct unconstitutional.
As these cases, and many more that I could list for you, demonstrate, we need an independent judiciary in our state now as much as we ever have. Even if some believe the independence of the courts are a barrier to the enactment of wise laws at this current moment, can these same people be sure that the next state or federal administration will not act beyond the bounds of the Constitution? None of us knows who the next governor or president will be.
Prime Minister Winston Churchill famously quipped, “It has been said that democracy is the worst form of government except all the others that have been tried.” What he meant was, democracy is a human endeavor. It is, therefore, not perfect, but it is better than any of the alternatives.
Much the same can be said of independent courts with the power to strike statutes as unconstitutional. I make no claim that the Kansas or federal courts have never erred, at least from my perspective, in applying constitutional law. I know full well that all Kansans have passionate views on school funding and many other issues. But perfection cannot be the right measure for any human institution — including our independent Kansas courts. The question must be, over the course of our history and looking toward an uncertain future: Are our liberties better protected with an independent judiciary? The answer to this question can only be “yes.”
— Lumen Mulligan is the Earl B. Shurtz Research Professor of Law and director of the Shook Hardy & Bacon Center for Excellence in Advocacy at the Kansas University School of Law.