Book says state’s high court historically has leaned right

Dick Seaton

By A Contributor

Recently our Supreme Court has been on the front page because of issues like school funding and abortion. The Kochs and the Tea Party types have had the Court in their sights, not to mention Sam Brownback and our conservative legislators.

But historically the Court has been a mostly conservative institution, out of the limelight. As Lee observes, “lawyers are universally conservative politically and are especially dedicated to precedent.

This becomes even more pervasive when they become judges.”

As a result, he says, politics has had little to do with the Court’s decisions. Nevertheless, he seems to agree with Aif Landon that “when the governor picks our judges, it will put the Kansas judiciary more into politics instead of less.”

Lee recounts the “triple switch” of 1956, when Governor Fred Hall, who had lost his bid for reelection, and Chief Justice Bill Smith arranged for Smith to retire, then for Hall to resign and for Lieutenant Governor John McCuish to take office as governor and appoint Hall to the Court. It all took place in just a few minutes’ time.

Before that, we had elected our supreme court judges since statehood. But Lee points out that a great many were actually appointed by the governor in the first instance, because of deaths and resignations.

It was really that part of the system which caused the voters to approve a constitutional amendment in 1958, providing for nomination of three candidates by a nonpartisan commission, with the governor to pick one. Brownback’s proposal that the judges be appointed by him with senate confirmation would largely be a return to the past.

Lee’s book includes short bios of all the judges since territorial days. It sets the historical stage for the different eras, from Indian claims to prohibition to civil rights to abortion and school funding.

He summarizes a total of 498 cases—more than the average reader will probably want to read.

But there are some fun stories in those cases. For instance, David Brewer, later on the U.S. Supreme Court, was at one time a district judge in Leavenworth.

In Harris v. Harris, he sat on a divorce case as district judge and then later, as a private attorney, appealed for the husband in the same case. He said he could not see why he should not complain of his own decision, as everyone else had done so.

Justice Burch, a colorful writer, said of a couple in a common law marriage relationship that for eleven years “they shucked their shoes together.”

In a famous obscenity decision that was eventually reversed by the U.S. Supreme Court, the judges said material is obscene “if the depth of the dirt exceeds the breadth of the wit.”

Since 1855, Kansas had required stores to close on Sunday.

But the Court in 1962 held this violated our state constitution and the 14th Amendment. Ag’~, they observed, does not validate a law nor rob it of its validity.

Wes Roberts, father of Senator Pat Roberts, was chair of the National Republican Committee.

He also acted as agent for an insurance company in the sale to the state of a building the company had earlier built on state land near Norton.

His commission of $11,000 caused a political uproar, and President Eisenhower secured his resignation as chair. But when the attorney general sued to stop the sale, the court approved it.

From 1916 until 1966, Kansas had a system of movie censorship.

The Board of Review had to approve every movie shown in the state’s theaters, and could force the distributor to delete any scenes or language the board found objectionable. These were usually depictions of drinking, nudity, women smoking, or indecent language. The board banned “Birth of a Nation” for nine years because of its racial bias.

The Board survived legal challenges until 1966, when U.S. Supreme Court precedent required that it be struck down as a prior restraint on freedom of speech.

One anecdote Lee doesn’t mention, perhaps with reason, is still a favorite of this reviewer. In State v. Lewis (1877), the defendant escaped from jail in Atchison, where he was held on a burglary charge.

After he was captured and tried for the burglary he was acquitted by a jury.

The state then convicted him of escape from custody. On appeal, he argued he couldn’t be guilty of escape because he was innocent of the burglary. He lost his appeal.

But the Court’s reporter, W.C. Webb, who was responsible for publishing the Court’s opinions, apparently without the judges’ knowledge, appended to the opinion a humorous poem by Eugene Ware written for the occasion.

It satirizes the law, although not the Court (Ware was a lawyer in Ft. Scott). A new reporter was on the job in Topeka shortly afterward.

Alton Lee has done a workmanlike job of capturing in one volume a huge and varied topic. As he concedes, it is only, “a brief overview, which may provide the foundation for more definitive works in the future.”

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