In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role.

The high court’s activist majority used Lobato vs. State not only to intrude on the legislature’s constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review.

So much for separation of powers, consent of the governed, or checks and balances.  In fact, the Lobato ruling leads to the obvious question:  “What’s left to check or balance the court?”

The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent.

A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions.

Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency.  Thus, the courts ruled that K-12 spending is a “political question” which the constitution specifically places within the authority of the legislature and beyond the court’s purview.

However, the supreme court’s majority selectively quoted and distorted the law and its own precedent.  Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.

Bender’s decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the “political question doctrine … should be abolished.”

Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs’ claims would “give the legislative branch unchecked power.”  Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor’s veto and by citizens’ initiatives?

In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained:  “Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary.”

Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says “the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools,” authority is clearly conferred upon the legislature and not the courts.

She also scolds the majority for twice distorting the court’s 1982 Lujan ruling on school finance.

Bender asserts that Lujan explicitly established the court’s authority to review public school finance.  Rice corrects the record to show that the Lujan court said, “[O]ur sole function is to rule on the constitutionality of our state’s system” (emphasis added) not “whether a better financing system could be devised.”

Rice goes one better in dismantling the majority’s argument that “the Lujan court engaged in a rational basis review of whether the state’s system violated the ‘thorough and uniform’ mandate.”  She retorts: “This is simply untrue – the Lujan court never references any test for ‘thorough and uniform,’ uses the words ‘rational basis,’ or posits any standard of review.”

In fact, the Lujan court left those determinations to the legislature because it was “unable to find any historical background to glean guidance regarding the intention of the framers.”

That’s the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.

Ironically Bender, Mullarkey and Martinez stand for retention in November 2010.  Perhaps then voters will exercise their own “checks and balances.”

One Thought on “Supreme Court’s power grab might backfire”

  • Yep, this is another reason why organizations like Clear the Bench ( are needed to stop this activist court.

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