State Supreme Courts are “the ultimate judicial tribunal in the court system of a particular state.” The Federal Courts only trumps them when there is a federal question and even then there is sometimes concurrent jurisdiction. On state issues they are the last word and therefore of utmost importance. The selection criteria of each state Supreme Court is dictated by the state’s constitution. Some states elect their justices in partisan or nonpartisan races; some are selected by appointment; and, some are by appointment initially and then stand for retention election. Each method of selection brings with it various issues. In those states that hold elections, there are always concerns over the raising and expenditures of campaign funds. In merit selection jurisdictions where justices do not engage in campaigns, the justices can be unprepared to face a last minute political campaign against them.
Supreme Court justices can face attacks to oust them based upon a controversial ruling
Under Attack
Irrespective of the selection process, Supreme Court justices can face attacks to oust them based upon a controversial ruling; can face recusal from hearing particular cases by politicians; and, even face internal political strife. In 1986 California removed the Chief Justice and two Associate Justices who were portrayed as opposing the death penalty. In 2010, three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage were also ousted. That same year conservative groups launched campaigns in 16 states that use merit selection, targeting Supreme Court justices for their rulings on abortion, taxes, tort reform and health care.
In the State of Wisconsin in 2011, the attacks came from within. In a divided Republican and Democratic Court, the Justices argued with each other so vehemently over a political case regarding collective bargaining and the state budget, that one justice accused her colleague of putting her in a choke hold. Other justices recruited candidates to run against their colleague.
Conflict in Kansas
The Kansas legislature has recently threatened to cut off all funding for the Kansas Courts if the Courts continue to strike down the legislative action and the District Court Judge put his ruling in abeyance. In the meantime, the attorneys for the legislative action called for the State Supreme Court Justices to recuse themselves from hearing the appeal and attorneys against the action said that the recusal request was frivolous and violative of legal precedent. They contended that only the Courts can maintain the jurisdiction to decide what cases to hear.This year brought a new low. The Republican-controlled state legislature and the state Supreme Court in Kansas are in a prolonged battle over education funding. The state Supreme Court has repeatedly ordered the legislature to spend more money on public education, a demand that conflicts with Republicans’ desire to cut taxes. In response “the legislature passed a bill stripping the Supreme Court of the administrative authority to appoint chief judges in Kansas’ 31 judicial districts.” The constitutionality of that administrative action was called into question as a violation of the separation of powers and was struck down by the Court as unconstitutional.
Law concept – Book with wooden judges gavel on table in a courtroom or enforcement office
Separation of Powers
Starting with Marbury vs. Madison in 1803, the doctrine of separation of powers in the U.S. Constitution has met its challenges throughout the history of this country and no doubt will continue to do so. There is a delicate balance between the three branches of government and for this democracy to work well no one branch should violate the separation of powers.
Should Judges and Justices be influenced on civil rights issues like the Iowa Justices faced in the same-sex marriage case? Should Judges and Justices succumb to the pressures of politics like those pressures faced in in Wisconsin and Kansas? Do we run the risk of having Justices be nothing more that legislators with robes?
What do you think?
Latest Update: Kansas Supreme Court Strikes Down Judicial Selection Law
First published on Justice Speakers Institute website.