Former Kansas Supreme Court Chief Justice Lawton Nuss talks June 2 with State Affairs Kansas reporter Bryan Richardson at a Kansas Oral History Project event at the Statehouse in Topeka. (Sherman Smith/Kansas Reflector)
By Clay Wirestone, opinion editor, Kansas Reflector
If you despair of Kansas politics right now, former Kansas Supreme Court Chief Justice Lawton Nuss wants you to know that they could be worse.
Nuss led the state’s high court from 2010 to 2019, shepherding through a series of momentous decisions on school finance, the death penalty and abortion. Along the way, he faced friction from hard-right legislators who sought to weaken the justices’ power. In 2022, he gave a lengthy interview to the Kansas Oral History Project about his tenure. He underscored his account during a conversation last month.
“I asked myself, outside of times of war in Kansas, was there ever a more consequential period in Kansas for the Kansas judicial branch than those 10 years?” he asked Kansas Reflector editor Sherman Smith.
During that decade, the Supreme Court repeatedly resisted efforts that would have made it a political football. Legislators threatened court funding and proposed changes to judicial appointments. The message, time and again, was that if the court ruled in ways that made Republicans unhappy, Republicans would dismember that court. Even after Nuss’ departure, lawmakers tried to pass a constitutional amendment that would reverse a ruling that women had the right to abortion care and Senate President Ty Masterson pushed changes to the justice selection process.
Before we go any further, click here to take a look at Nuss’ full interview for the oral history project. Trust me, it’s worth your time and provides essential details.
The key point? Our Supreme Court rules independently. Justices are selected through a merit-based process. That means Kansas avoids the spectacle of big money judicial elections (former U.S. Supreme Court Justice Sandra Day O’Connor recoiled at the concept), instead allowing the public a voice through the retention election process.
This has been good for school children in Kansas, who have benefited from public education funding pried from the greedy hands of Topeka power brokers. It has been good for women and families, who can keep making the best decisions for their own reproductive health.
It’s also been good for those who care about the U.S. and Kansas constitutions.
“Our founders — federally — in the 1780s came up with the three branches of government,” Nuss told interviewer Richard Ross last year. “The Kansas Constitutional Convention in 1859 did the same thing. We’ve had three branches in Kansas ever since. And, yes, sometimes there is tension among the three. Sometimes, in Kansas, there is tension, two of them on one side, the judicial branch on the other. But as far as the judicial branch is concerned, and I speak only for it, we believe in the Constitution and the rule of law.”
Other states across the country have slid further and further under the influence of would-be authoritarians. I’m looking at you, Florida. There, Gov. Ron DeSantis revamped the state supreme court to ensure as little pushback as possible for his policies.
For now, Kansas has avoided that fate.
But as Nuss recounted, we’ve seen judicial independence threatened repeatedly. Lawmakers tried to strip the court of its constitutional powers and then threatened to defund the judicial branch. He told a story about former Senate President Susan Wagle, who opposed the court’s role in settling the long-running Gannon school funding lawsuit.
He takes it up from there in his oral history interview.
“President Wagle said, ‘We’re waiting on that school finance decision in Gannon.’ Once the court releases that decision, and I’m going to quote her if I may, she says, ‘What we’re going to do is focus on what is the role of the Supreme Court. Should they be interpreting the law?’
“Well, that’s what courts do. That’s a core function of the courts, and they’ve been doing it for hundreds of years. So for the Senate president to say, ‘Well, when that decision comes down, we’re going to have to see if the Supreme Court really should be interpreting the law,’ I wasn’t quite sure what she had in mind, but it didn’t sound like it was consistent with the Kansas Constitution and what judges typically do.”
Both The New Yorker and New York Times covered the clash, which ended with lawmakers retreating from their threats after Nuss and his colleagues stood firm.
The argument hasn’t ended, though.
Watch what those in the Kansas Legislature say. Watch what lobbyists in influential conservative think tanks say. They see the state supreme court as one of the final obstacles to achieving total control of state government. Yes, voters periodically elect Democrats to the governor’s office, but that obstacle can be dealt with through veto-proof majorities. Want proof? Just look at last session’s raft of execrable laws.
Keeping Kansas on a sane and balanced path requires judges who put the state constitution ahead of their personal prejudices. It requires a judicial branch brave enough to face down extremists and call their bluff when necessary. (Nuss did so repeatedly, even writing prickly op-eds for Kansas newspapers.)
It also requires you to understand the stakes.
Without an independent court, legislators would have banned abortion. They would have hollowed out public schools. These most extreme elements in Kansas government would have harmed more people and done more damage.
The disappointment of the 2023 legislative session would be seen instead as the best we could do.
Or as Nuss told Smith last month: “I want people to understand that if they’re not watchful in the future, something like that can happen again. And I just demonstrate that again by saying I had so many fellow chief justices from around the country, they couldn’t believe that such a thing was being done. And so I just want people to be watchful, to be vigilant.”
Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, 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.
This article was reprinted with permission from the Kansas Reflector. The Kansas Reflector is a non-profit online news organization serving Kansas. For more information on the organization, go to its website at www.kansasreflector.com.