Justice, the famous statue tells us, is blind. Prosecutors, juries and judges are supposed to determine facts, apply the law and reach impartial decisions.
It’s largely a myth, of course. Prosecutors have wide, unilateral discretion to decide who gets charged and who doesn’t. Juries sometimes acquit defendants to nullify laws with which they don’t agree. Two judges, reading identical words, often reach vastly different conclusions about their meaning.
In those cases and others, the choices aren’t always legal or factual. They’re political — not in a partisan way, but in the broader sense of balancing competing interests.
Last Friday, the Kansas Supreme Court released its long-awaited decision in the school funding case. The judges said poorer districts should get more money now, while funding levels for all the state’s schools should be re-examined.
The near-unanimous praise for the ruling is your first clue it was more political than legal. The judges found a sweet spot: quick relief for disadvantaged students, hope for all districts, but no confrontation with lawmakers.
To get to that spot, the court essentially found the school finance plan legal and illegal at the same time. Which is logically impossible, but politically perfect.
Some are worried about unelected judges reaching such a political result. In fact, the court was simply assuming a role lawmakers have abandoned.
After all, the court’s compromise is precisely the kind of something-for-everyone arrangement legislators might have found 25 years ago when they were interested in actually governing.
Instead, elective politics today is a winner-take-all affair. It’s more about cable shoutfests than policy.
Indeed, legislatures today are more like courts as we imagine them: bodies designed to absolutely determine winners and losers.
And the courts act more like legislatures: balancing interests, looking for areas of agreement.
Justice isn’t blind. Lawmakers are.
Neither branch appears happy with this trend. Elected legislators insist they want to make policy, while appointed judges say they would rather thumb through dusty law books than decide political issues.
But the first half of the Kansas school decision is a long lecture about why the courts have had to intervene in the case, over and over again. It’s because the other branches have not done their jobs.
It might be a good idea for legislators to take another look at that statue. Justice also holds a scale, for balance.