Proposed state constitutional amendment: An invitation to judicial politics

"Armed with the power of declaring laws to be unconstitutional, the American [judge] perpetually interferes in political affairs," wrote Alexis de Tocqueville in "Democracy in America" (1832).

A "tendency to diminish the judicial power exists in the United States," he went on, "and by most of the constitutions of the several States … the members of the tribunals are elected . … I venture to predict that these innovations will sooner or later be attended with fatal consequences [for] the democratic republic itself."

"Sooner or later" is a long time. For all these decades, the alternating tendencies for American factions to, on the one hand, use judges to interfere with political developments they don't like — and, on the other hand, to seek to "diminish judicial power" when their own aims get interfered with — have remained a perpetual source of tension.

The latest "innovation" in this endless debate over judicial power involves a bold proposal from two bold and unconventional Minnesota leaders — Minneapolis Federal Reserve Bank President Neel Kashkari and retired state Supreme Court Justice Alan Page.

Page and Kashkari urge that the state should transform its search for a way to close Minnesota's painful education achievement gap by enshrining in the state Constitution a "fundamental right" for "all children" to receive "a quality public education" that "fully prepares them" — all as "a paramount duty of the state."

The proposal for the Legislature to put such an amendment on the ballot for voters' approval this fall has quickly inspired a spirited discussion. Community leaders and business leaders across the political spectrum are uniting in support of this "disruptive conversation" about the need for drastic change to improve educational outcomes, especially for children of color.

Meanwhile, the state teachers union has come out in opposition, largely for fear that the new constitutional right could be interpreted to justify parents using state funds in private schools. One voucher proponent responded on these pages that this was all the more reason to back the Page/Kashkari plan.

In short, a rollicking debate is underway about whether establishing a fundamental constitutional right to a good education for all can achieve this long-elusive goal — about what effect getting courts and judges more involved would have on the schools.

Few seem to be asking what effect all this would have on the courts. I venture to predict there would be consequences — and sooner rather than later.

Minnesota is one of the many states where "members of … tribunals are elected." Yet Minnesota has so far largely avoided the all-out politicization of judges' elections that have become the norm in numerous other states — with harsh, big-money advertising campaigns and openly partisan rhetoric undermining confidence in the impartiality of justice.

Politics has remained muted in Minnesota judicial elections even though anti-establishment candidates have won the rights from federal courts to declare positions on political controversies and seek endorsements from parties. A consensus has held sway here that politics and the courts shouldn't mix (much).

The quickest way to shatter that consensus would be to put Minnesota judges in the business of "interfering in political affairs" more deeply and constantly than ever before — on the costliest and most consequential policy issue in state government.

The Minnesota Constitution has long guaranteed a "uniform system of public schools" that is "thorough and efficient." The state Supreme Court had interpreted that rather modest goal to ensure an "adequate" education for all — also something less than a lofty vision.

In 2018, the state high court took a first step toward asserting judicial power over education when it allowed a desegregation lawsuit to go forward in the lower courts on grounds that racially lopsided schools deny an "adequate" education to minority youths. Courts had previously held that deciding whether schools are "adequate" is a "political question," not a judicial one. That lawsuit is still ongoing.

But the Page/Kashkari amendment would put vastly more sweeping and ambitious language in the hands of judges. The Fed's website statement insists that the new constitutional language won't "dictate … education policies" but will merely "lead to legislative and regulatory changes to improve educational outcomes … ." Yet "if those changes prove insufficient," it adds, "ultimately families will be able to turn to the courts to have their children's rights vindicated … ."

And turn to the courts they will, never fear. It won't just be "families," but teachers unions, critics of those unions and their tenure rules, advocates of vouchers, defenders and enemies of charter schools, desegregation advocates, testing proponents and detractors, etc., etc., etc. All will argue that their educational prescriptions alone will prove sufficient to fulfill the constitutional mandate.

Won't the courts narrow the definition of this new fundamental right to a "quality education" so that judges can reject attempts to actually dictate education policies through lawsuits — first from one ideological faction, then from another?

Naturally, that depends on who the judges are. And there's the rub that will bring the consequences.

Under this amendment, the seven judges of the state Supreme Court ultimately would be "armed with the power" to enforce the state's "paramount duty" to fulfill children's rights to be "fully prepared" in a way the court finds "sufficient." Determining which seven Minnesota lawyers would wield that boundless power to define those soaring obligations would become a matter of, shall we say, paramount political importance. The era of polite, nonpolitical judicial elections in Minnesota might well be over.

In a meeting with the Star Tribune Editorial Board, Justice Page acknowledged that the potential for politicization of the courts is the "one thing" that gives him "indigestion" about the amendment proposal.

Yet while a more politicized judiciary might have "fatal consequences" for confidence in impartial justice, it would, in another sense, be only right if courts are to be put in charge of Minnesota's schools. K-12 schools consume about 40% of all state spending. How to allocate such an enormous portion of the public's wealth in an incomparably complex enterprise with profound effects on individual lives can't be determined through legal logic and a few shiny words in a constitutional clause.

This is the quintessential subjective political question, properly settled through the freewheeling debates and negotiated compromises and frequent shifts of power by which the will of the people is expressed in the political give-and-take of legislators, governors and local school boards.

If Minnesota's judges are going be interfering in that political work, the political will of the people is soon likely to interfere with them.

D.J. Tice is at Doug.Tice@startribune.com.