Recent announcements regarding the retirement of Justices Lee Johnson and Lawton Nuss from the Kansas Supreme Court have garnered considerable news as this situation allows Gov. Laura Kelly the opportunity early in her tenure to appoint more justices to our state’s highest court than her immediate predecessors.
Kansas’ highest court continues to be newsworthy as state legislators bristle over perceived judicial overreach in the realm of school finance in Kansas. Some lawmakers when news of Justice Nuss’s retirement broke questioned whether the ability to appoint Supreme Court justices should remain in place as they have since 1958.
However, the role of the judiciary and the blurring of lines between the judicial and legislative branches are not restricted to Kansas. On the federal level, there has been controversy over recent rulings by the Supreme Court regarding gerrymandering and the ability of the president to declare a national emergency and transfer funds earmarked for other purposes to go to his wall on the U.S. southern border. Congress felt the president did not have the Constitutional authority to repurpose these funds as the power to fund legislation lies with the legislative branch of government.
The brief Supreme Court order did not tackle the larger Constitutional question, but on both the national and state level, there has been much debate and wringing of hands over the law and its role in politics.
Judicial activism and restraint lie in the eye of the beholder.
When I teach Advanced Placement (AP) United States Government and Politics, I relish the opportunity to discuss the doctrine of the separation of powers. The European Enlightenment proved to be quite influential as these colonial leaders struggled with how to address grievances with Great Britain and eventually how to create a nation anew.
The writings of the French author Charles Louis de Secondat, Baron de Montesquieu proved to be central to the eventual creation of the branches of government in the United States. In his "Spirit of the Laws" published in 1748 Montesquieu wrote, “In every government there are three sorts of power, the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.” What is notable is there is not in this passage any mention of a judicial power. Most commentators will take the third law enumerated in the passage to imply a judicial authority.
As we know from the text of the Constitution, the United States did divide the government into the three branches we all learned about in our civics and history classes.
Almost immediately however, entanglements and battles emerged as the nation developed. The doctrine of judicial review that emerged from the Marbury v. Madison (1803) case involved Chief Justice John Marshall issuing a ruling that he should have likely recused himself from as it involved the previous presidential administration he had served in prior to becoming a Supreme Court Justice. Instead, Marshall declared a statute unconstitutional thereby giving a power to the judicial branch not formally written into our Constitution. Over 200 years later, these battles still rage.
Many of my liberal friends railed against the ruling on gerrymandering by the Supreme Court as an ideological decision. However, there are issues that the courts should decide and others that are political and not judicial. The courts cannot and should not replace the role of legislatures. Furthermore, in my lifetime, I have seen the tainting of judicial nominations by politics. In 1962, Byron White’s confirmation hearing took 95 minutes.
As politicians in Kansas and on the national stage ponder the future of judicial appointments and the scope of judicial authority, I would hope they keep their eyes on the distant political horizon and not their own short-term goals.
Decisions made today will bear fruit and consequences long after these legislators have left the stage. Justice is not for personal use.
Nicolas Shump is a longtime educator and writer in northeast Kansas. He can be reached at firstname.lastname@example.org.