In 2019, the Kansas Supreme Court ruled that the Kansas Constitution protects the right to abortion, a decision that set the state up as a beacon of abortion access as other states banned the procedure after the U.S. Supreme Court ended the federal right to terminate a pregnancy three years later.
Missouri and Kansas Republicans, angered by the role their high courts have played in advancing abortion access and other decisions that have irritated them over the years, are calling for wholesale changes in how members of the courts are selected.
The overhaul sought by some GOP lawmakers has sparked fears in both states that the changes, if implemented, would threaten judicial independence and politicize the judiciary. Over time, the court’s decision-making could grow more conservative in ways that Democrats and liberals fear could threaten reproductive freedom and other rights.
Even some Republicans oppose a remake, with at least a portion of Missouri GOP lawmakers arguing their state’s Supreme Court will move naturally to the right over time.
But frustration with the courts is coming to a head. Incoming Missouri Senate President Pro Tem Cindy O’Laughlin, a Shelbina Republican, has introduced a state constitutional amendment that would make the judges of the Missouri Supreme Court elected. O’Laughlin, the chamber’s top Republican, has signaled the proposal is a personal priority.
In Kansas , GOP lawmakers have been seeking to change the selection process for more than a decade. But the topic is receiving renewed attention after Kansas Attorney General Kris Kobach , a Republican, in September said a constitutional amendment is “absolutely” needed.
Both Kansas and Missouri select members for their state supreme courts (called justices in Kansas , judges in Missouri ) using the “Missouri Plan” – a process involving a nominating panel of lawyers and others who provide the governor with three finalists. The governor then appoints one of the finalists to the court.
The justices or judges can be removed at retention elections, however. They must stand for retention generally every 12 years in Missouri and generally every six years in Kansas.
The system, which dates back to the 1940s, is praised by supporters as an effective method for keeping politics out of the judiciary. But critics say the current system places too much power in the hands of little-known panels of lawyers and makes judges and justices too distant from the public they’re serving.
At least 14 states use some form of the Missouri Plan or a merit selection system to choose state Supreme Court members, according to data from the Brennan Center for Justice. By contrast, 21 states hold either partisan or nonpartisan elections.
“Missourians deserve judges who protect their liberties and conservative values—not ones selected through an insider-driven process,” O’Laughlin said in a statement explaining her proposal. “This bill empowers Missouri voters by giving them a direct say in electing judges, ensuring our judiciary serves the people, not the political or legal elite.”
Electing Judges
Under O’Laughlin’s plan, Missouri Supreme Court and Appeals Court judges would be chosen in nonpartisan elections for six-year terms, though candidates could still campaign as Republicans or Democrats . Political parties would also be allowed to support candidates.
While the Missouri Supreme Court chief justice would be elected in a statewide vote, voters in each appeals court district would elect two Supreme Court judges. The state currently has three districts, which would provide for a seven-member court – the same size the court is today.
The appeals court districts – western, southern and eastern – are drawn along geographic, not population, lines. The measure would potentially give the votes of some residents more weight than others in Supreme Court elections if the district populations are unequal.
The proposal is explicitly written to allow candidates for the Supreme Court to wade into public controversies while campaigning. It says candidates “may announce his or her views on disputed legal or political issues” – a broad category that could conceivably encompass nearly any matter – provided that they make no pledges or promises to issue specific rulings “on pending litigation.”
“Our system works. It works well. We get good judges,” said Jim Layton, a former Missouri solicitor general. “If you shift to elected judges, the candidates will be politicians. And so, the question arises, do you want the court to consist of politicians?”
Layton, who spent more than 22 years in the Missouri Attorney General’s Office, suspects few if any, judges who have sat on the state Supreme Court under the Missouri Plan would be willing to run in a contested election.
The current system, he said, produces judges well-qualified to analyze and decide legal disputes – as opposed to judges who are versed in the art of running elections. Asked if elected judges would pose less of a check on the other branches of government, he indicated it’s possible.
“Well, if the judges were elected and the state remained as Republican as it currently is, and the legislature and the governor are Republicans , then I suppose the answer to that is yes,” Layton said. “But that’s a function of our current circumstance. I don’t know that that would always be true.”
The Missouri Supreme Court is already dominated by the appointees of Republican governors. Five of the seven members were chosen by GOP governors, including three by Gov. Mike Parson alone.
But the Democratic appointees still proved crucial to September’s 4-3 decision to keep the abortion rights measure, called Amendment 3, on the November ballot.
The majority opinion was written by Judge Paul Wilson , an appointee of Democratic Gov. Jay Nixon . The court’s other Democratic appointee, Chief Justice Mary Russell , concurred in the decision, along with Judge Robin Ransom , a Parson appointee, and Judge Brent Powell , an appointee of Republican Gov. Eric Greitens .
The case involved a legal dispute over the initiative petition process, not the merits of abortion policy. But if a single judge had come to a different conclusion, the court would have potentially upheld a lower court decision keeping the measure off the ballot – and the abortion ban in place.
Decade-old Push in Kansas
In Kansas , Democratic governors have made a much larger impression on the current state Supreme Court . Five of the seven justices were appointed by Democrats , including three by Gov. Laura Kelly .
The court actually has one more member appointed by a Democratic governor than when it ruled in 2019 that the Kansas Constitution includes a right to bodily autonomy and therefore a right to abortion. Lawton Nuss , who was the chief justice at the time, was appointed by Republican Gov. Bill Graves . He left the court at the end of 2019.
“Our current state Supreme Court is selected in a manner that makes it one of the most progressive supreme courts in the United States,” Kobach told a gathering of Shawnee County Republicans in September, The Topeka Capital-Journal reported at the time.
“I’ve argued in front of several of them, and our court is far to the left of the norm in state supreme courts,” Kobach said. “It’s all because of the method we select our justices. We absolutely have to have a constitutional amendment to change that.”
Kansas Republicans have spoken of changing how the state selects its Supreme Court justices for more than a decade. Republicans were upset in 2014 by a Kansas Supreme Court decision vacating the death sentences of Jonathan and Reginald Carr , brothers convicted of murder. The U.S. Supreme Court later overturned the state Supreme Court decision.
Republicans went as far as campaigning for the non-retention of some of the justices but faced an uphill battle. No Kansas justice has ever been non-retained.
Kansas lawmakers have explored both the idea of electing justices, as well as moving to the “federal model” where the governor would nominate a potential justice and the state Senate would confirm the individual. Over the years, the confirmation approach has received the most attention.
But supporters of a change have been unable to clear the high bar to place a constitutional amendment in front of voters. Two-thirds of the House and Senate would need to approve an amendment to trigger a statewide vote.
Most recently, the Kansas Senate in 2022 failed to advance an amendment in a 26-13 vote.
Kansas Senate President Ty Masterson , an Andover Republican, has long been a proponent of ending the state’s current selection model. In 2022, he testified to a legislative committee that the current system was “fundamentally flawed” lacking checks and balances.
He also directly linked his support for an overhaul to the 2019 abortion decision.
“This ruling was made possible by a flawed system which is rigged to allow justices with radical judicial philosophies to be appointed to the Supreme Court without the check of Senate confirmation,” Masterson told the committee.
Masterson spokesman Mike Pirner said in a statement on Friday that judicial selection reform is “critical to ensure Kansans have a voice in the selection of the highest judicial body in the state.” He said reform has been a priority for Masterson since his first election and “is needed now more than ever.”
Kansas Sen. Ethan Corson , a Fairway Democrat, said the current selection method has served the state well. Senate confirmation would unnecessarily inject politics into the process, he said, adding that the U.S. Supreme Court confirmation process is itself a broken process and an “embarrassing circus.”
“I think that it’s really ensured that we try to keep politics out of the judicial branch and that we’re putting forward really well-qualified and excellent judges to serve on our state supreme court , which I think has led to, again, a really high caliber of justices being selected across a spectrum of ideologies,” Corson said.
In a recent interview, Kansas Rep. Susan Humphries , a Wichita Republican who chairs the House Judiciary Committee , called Kansas an outlier state in how justices are selected. While Kansas isn’t alone in using the Missouri Plan, a majority of states use some other form of selection.
“I think it’s something we need to take a serious look at,” Humphries said, adding that she doesn’t currently have a favorite between direct elections or the federal model.
Humphries said she wasn’t sure how much momentum will exist for action in the Kansas Legislature in 2025.
“It’s hard to tell. There’s been a little bit of talk about it but we don’t know yet,” Humphries said.
Avoiding Washington 'Mess'
Overhauling judicial selection may prove easier in Missouri . Lawmakers need only simple majorities in the House and Senate to place an amendment before voters.
Still, O’Laughlin, the Missouri Senate president pro tem, will encounter at least some trepidation from fellow Republicans .
Missouri Sen. Mike Cierpiot , a Lee’s Summit Republican, said he’s “not a fan” of O’Laughlin’s proposal. Cierpiot, whose wife serves on the panel that helps select Supreme Court finalists, said Missouri doesn’t want to go the way of Wisconsin and other states where expensive Supreme Court election contests have become the norm.
And like Corson in Kansas , Cierpiot wants Missouri to steer clear of Washington-style confirmation battles.
“I think the federal plan,” Cierpiot said, “we see what the mess is in Washington with that when one party controls the Senate , the other party has the presidency – because judges have become so critical and so important.”
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