It was announced recently that Justice Bob Abbott would soon retire from the Kansas Supreme Court as a result of reaching the statutory retirement age. Abbott’s retirement will be the fourth retirement from the Supreme Court bench since 2002. Since the Kansas Supreme Court only has seven justices, this means that once a replacement for Abbott is confirmed, a majority of the justices soon will have sat on the court for only a short time. Such a large turnover in justices cannot avoid having a significant effect on the court.

It has been traditional among legal scholars to argue that individual justices do not make a significant difference in the nature of a court. Of course, history proves otherwise. One need only look at the U.S. Supreme Court appointments in the last 20 years to recognize that every justice can and does make a huge difference in the overall dynamics of the court and its opinions.

The U.S. Supreme Court would be a different place today if, for instance, Justice William Rehnquist were not on the court. But when one is talking about the rare situation which is now in process in Kansas when a majority of the justices are new, then the potential change in the court’s jurisprudential complexion might be quite significant.

When discussing the possible changes in the Kansas Supreme Court in the next few years, it is important to recognize several factors. First, we have been lucky in Kansas to have had high-quality judges throughout our court system. While many Supreme Court watchers in this state regret the recent retirements because the justices who have retired had earned our deepest respect, these same lawyers and legal scholars welcome the new appointees because we know how good they are as well. So a change in competence is not an issue.

Similarly, unlike appointments to the U.S. Supreme Court, appointments to the Kansas Supreme Court rarely involve overt political issues. The state Supreme Court and its docket are not so highly politicized as is the U.S. Supreme Court and, as a result, its cases and the political beliefs of justices both in general and on specific issues are of less significance.

Where I think the Kansas Supreme Court will become most important during the next few years and where the justices will play their most important roles are in two areas. First, the Kansas judicial system, like the rest of state government, is suffering greatly from the state fiscal crisis. The court and its justices are the senior members of the system and the guardians of the system’s well-being.

Chief Justice Kay McFarland and her colleagues have been tireless advocates on behalf of the judicial system in years past and must continue that emphasis. This is an important role which the new justices must take on. Second, increasingly, the U.S. Congress is passing legislation that is either in conflict with state statutes, particularly in the areas of civil rights, or that places unfunded burdens upon the states. Similarly, the U.S. Congress is increasing the reach of the federal criminal law system, often at the expense of state laws.

At the same time, the U.S. Supreme Court, in the name of federalism, is shifting authority to state legal systems and courts. State supreme courts, including our own, will need to play a much more active role in these areas and assert our state rights even more than in the past. This, too, is a major role which our new justices, hopefully, will take on.

In sum, therefore, these new appointees to the Supreme Court have important tasks to fulfill in the coming years. They promise to be important in the future well-being of both the court system in Kansas and in the protection of state legal and legislative prerogatives. I have no doubt that they will be up to the task.

— Mike Hoeflich is a professor in the Kansas University School of Law.