Despite amendment claims, Kansans already have a voice in who sits on the state Supreme Court

A statue representing justice stands at the Kansas Judicial Center, where the Kansas Supreme Court is located, on Feb. 4, 2022. (Photo by Sherman Smith/Kansas Reflector)

On Aug. 4, Kansans will vote on a constitutional amendment to determine how we select Supreme Court justices. The proposed amendment would eliminate our current merit-based selection process, replacing it with a popular election. The details of the proposal will be worked out later by the state Legislature.

Increasing democratic participation in government is a laudable goal — certainly one that must be promoted when selecting lawmakers and top executive branch officials. This ensures that creation and implementation of laws reflect the will of the people. But the job of a Supreme Court justice is different.

The judiciary ensures that laws are interpreted and applied correctly. Faithfully adhering to legal principles sometimes means making unpopular decisions. For example, according to a Gallup historical poll, the landmark Brown v. Board of Education ruling that held school segregation to be a violation of the Constitution was extremely unpopular in some areas, having support of only 27% of people in southern states. Although mandated by the Constitution, desegregation might not have won in a popular election.

Judicial rulings must be the product of sound legal reasoning and interpretation, insulated from the changing winds of public opinion. Justices who interpret our laws must possess intellectual rigor and judicial integrity more than campaigning skills.

Kansas’ current system for selecting Supreme Court justices involves a nonpartisan, nine-person judicial selection commission, consisting of one lawyer and one non-lawyer from each of Kansas’ four congressional districts, plus one lawyer who serves as chairperson. When there is a vacancy on the Supreme Court, the commission reviews applications and conducts public interviews of the nominees. The commission evaluates applicants’ “legal and judicial experience, educational background, character and ethics, temperament, service to the community, impartiality, and respect of colleagues.”

The commission then forwards three applicants to the governor, who appoints one of those three. While serving, Supreme Court justices are held accountable to the public — members must stand for a popular retention vote in the first general election following appointment, and every six years after that.

The current selection system works well and produces highly qualified justices of whom Kansans consistently approve. A 2025 Kansas Speaks survey reports that only 21.1% of Kansans are dissatisfied with the Kansas Supreme Court. Contrary to claims by critics about the current system, Kansas voters do indeed have a voice in who sits on the Supreme Court bench.

For more than 60 years, in every popular vote on whether to remove a Supreme Court justice, Kansans have voted to retain.

One may ask: What is the downside if we abandon our merit-based selection process in favor of a yet-to-be determined popular election system?

We can learn much from the 2025 Wisconsin Supreme Court elections. According to Wisconsin Watch, $144.5 million was spent on an election for a single court seat. Although this election was in theory nonpartisan, the two major political parties were the largest donors to the campaigns. Most individual campaign contributions came from people who didn’t even live in Wisconsin. This judicial election was an ideologically driven, highly partisan, expensive, national political battle.

The Brennan Center for Justice reports that much of the untraceable campaign money came from super PACs, punctuated by misleading attack ads. Introducing politics and outside money from special interest groups can produce elected judges who are political partisans beholden to special interest groups, rather than jurists who rule impartially based upon the law.

What is behind the push to jettison Kansas’ current merit-based system? We’ve heard a hint from Kansas Senate President Ty Masterson. The Marion County Record reports that he told a group of Republicans: “If we elect our Supreme Court, they won’t force you to spend money on schools.”

School funding and other hot-button, legally settled issues could return to political play before our courts, regardless of their legal foundations.

Our current system combines the benefits of merit selection with a popular vote to determine if a justice should remain in their position. Consider this: if you lived in a home that served the needs of your family and that you were happy with, would you raze it when someone urges you to build another house with different features, the blueprints for which have not yet been drawn?

John J. Francis is a law professor at the Washburn University School of Law. The views expressed in this article are solely his own and do not reflect the views of Washburn University or the Washburn University School of Law. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.