Op-Ed: Pension Ruling Puts Partisan Nature of Judiciary on Full Display
After the Kentucky Supreme Court ruled that the process used to pass pension reform by the General Assembly was unconstitutional, the bill’s opponents cheered, taunted, and repeatedly spiked the football both in newspaper columns and on social media.
While it is not uncommon to those of us who have been in public life to see wins and losses in politics, this ruling seems to be the culmination of something different. It is the latest demonstration of Republicans regularly getting the short end of the stick in the judicial branch, a reality that should be of concern to both sides.
The issue of Senate Bill 151 turned out to be a microcosm of those concerns, as the collision of partisan politics and our judiciary was on full display.
Starting at the circuit court level, Judge Shepherd issued a ruling that was concerning in multiple ways. He ruled that SB 151 was an appropriation requiring 51 votes (the bill received just 49 votes), even though such an argument was never even brought up by the Attorney General or other opponents of the bill in court. This was proof positive that the Judge was on the lookout for additional arguments to supplement his position.
But even more concerning, Judge Shepherd referred to legislation to shore up the Commonwealth’s pension systems and overall finances as the “sewage bill”, adopting the other sides’ spin and talking points and even incorporating their rhetoric into his opinion.
This blatant partisanship sadly continued at the Supreme Court. Three of the seven judges sitting on Kentucky’s highest court referred to SB 151 as the “sewage bill,” failing to even try to conceal their partisanship and bias.
Further, the high court’s opinion twisted itself into a pretzel to declare that their own newly-established precedent, which overrode decades of legislative procedure and constitutional interpretation, should not apply to any bill other than SB 151.
Appellants maintain that the artifice used to enact SB 151 has been employed in the past on numerous occasions to enact numerous bills, and so a ruling affirming the trial court threatens the validity of many current laws. We are not persuaded. Any infirmities that might have been raised in timely fashion to challenge the enactment of now well-established laws are beyond the purview of this opinion.
How is this even possible? If the method of passing SB 151 was unconstitutional, then why isn’t every other bill passed in this way unconstitutional? Is the court’s definition of “well-established” based on a certain statute of limitations – or just the laws the Supreme Court likes or dislikes?
Not only is this sort of partisanship embarrassing, but it has real world consequences that should concern every Kentuckian, regardless of party. In this case, it is a setback to good faith efforts made to improve the solvency of the retirement of our public employees. But on a broader scale, it is affirmative proof that the non-partisan nature of our judicial system has evolved into the courts acting like partisan super legislatures, seeking to make the law according to politics rather than interpret it fairly.
There is a reason we require our judges to run on a non-partisan basis; they should be apolitical and solely committed to upholding the rule of law. When judges begin inventing new arguments, using partisan rhetoric, and selectively applying their own standards, something is wrong.
Republicans do not expect to control the judicial branch. But we do expect a fair shake, and a judiciary that is non-partisan, consistent in its rulings, and dedicated to nothing except the rule of law.
Adam Koenig is a Republican state representative from Erlanger and represents House District 69