Why Vote To Retain The Supreme Court Justices?

By Lawton R. Nuss
Chief Justice (Retired)
Kansas Supreme Court

This fall I will mark my ballot to retain all six Kansas Supreme Court justices.  Yes, I know that everyone is entitled to their own opinion.  So, as judges often demand, here’s the evidence supporting mine.

I served on the Supreme Court from 2002 through 2019, the last ten years as chief justice.  During that time, my fellow justices included Marla Luckert (since 2003), Dan Biles (since 2009), and Caleb Stegall (since 2014).  I witnessed firsthand how hard these justices worked to reach the right answers, regardless of how much time that demanded.  I also saw firsthand their willingness to make tough decisions that they knew would be unpopular with the public—and sometimes different from the results they personally wanted.  That is because they concluded those results were required by the particular case’s facts and the law.  This process is often called “the rule of law.”  As the renowned conservative, U.S. Supreme Court Justice Antonin Scalia, declared:

“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

This judicial decision-making process is, by design, very different from the approach of the other two branches of Kansas government.  In short, the legislative and executive branches are purposefully constructed to be political.  They do—correctly—seek the public’s views.  So they often produce particular results simply because their voters want them.

While I never served on the court with the three other justices on the ballot, I can personally attest that they understand and employ the judicial decision-making process I have described.  I can also attest to their strong work ethic.  During many of my years on the Supreme Court, Evelyn Wilson was serving as a district court judge and Melissa Standridge as a Court of Appeals judge.  So I read their judicial decisions and knew of their fine reputations among their fellow judges.  Similarly, K.J. Wahl worked for years on difficult issues as a Supreme Court attorney directly under my supervision.

So, why exactly do these justices make decisions that are sometimes unpopular—and sometimes that they don’t personally even want to make?  There are several reasons.

First, since 1868, Kansas law has required “all officers elected or appointed under any law of the state” to solemnly swear (or affirm) to support both the United States and Kansas constitutions and faithfully discharge the duties of their office.  This law obviously applies to officers in our legislative, executive, and judicial branches of government.  But unlike the other branches’ officers, the Supreme Court justices work with these constitutions on a regular, sometimes daily, basis.  And consistent with their oath to support these constitutions, the justices must ensure they protect our rights enshrined there.   These include the right to be free from unreasonable searches and seizures, to effective assistance of legal counsel, to receive a fair trial, and other vital rights.  It is inevitable that fulfilling their judicial obligations to protect individual rights sometimes produces results unpopular with the majority of Kansans.     Because as Justice Scalia explains, this is what happens with “good and faithful” judges.

Second, the justices are bound not only by their solemn oaths to support the constitutions.  They are also bound by the Kansas Code of Judicial Conduct.   Canon 2 of the Code clearly requires that, “A Judge Shall Perform the Duties of Judicial Office Impartially, Competently, and Diligently.”   Taking the Canon together with its explanatory Rule and official Comment, to be impartial a judge “shall uphold and apply the law”—and “must interpret and apply the law,” even if the judge personally “disapproves of the law in question.”

Based on my long personal experience with these six justices, I know they take very seriously their Judicial Conduct obligations and their solemn oaths of faithfulness to our constitutions.   Please join me in voting to retain them so they can continue their crucial work for us.  For as our fellow Kansan President Dwight Eisenhower said some sixty years ago, “If civilization is to survive, it must choose the rule of law.”

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