As Americans question the Supreme Court, our Kansas justices seem nervous too

Columnist Eric Thomas frets about the impact of the U.S. Supreme Court on public confidence in all courts. (Eric Thomas for Kansas Reflector)

In one of the Kansas Supreme Court’s most recent decisions, I found an echo. That echo comes in the form of one word: “legitimacy.”

And my greatest worry? That this echo, in the form of the word “legitimacy,” might originate from the nation’s highest court as it struggles to hold the respect of Americans. Use of that particular word might also signal our state Supreme Court’s doubts about itself, paired with the justices’ worries about how Kansans are reading their decisions.

Let’s jump into the text.

The case that caught my eye was published July 5 by the Kansas Supreme Court: Hodes and Nauser v. Stanek. As Kansas Reflector reporter Tim Carpenter summarized, the decision confirmed “the majority’s belief the state Bill of Rights guaranteed the right to end a pregnancy.” The decision was one of two abortion decisions handed down on that day.

Justices on both sides of the decision conjured the word “legitimacy.”

In a concurrence with the 5-1 majority opinion, Justice Evelyn Wilson wrote that it would be “unacceptably disruptive” to overturn the legal rationale of the court’s 2019 decision, which established abortion as a constitutional right in Kansas.

“To me, these considerations are more significant than my personal view on the accuracy of Hodes I,” she wrote, referencing the 2019 decision. “The issues are too complex for me to suggest in good faith that the decision was clearly erroneous. And the risk of tarnishing the legitimacy of this court, as well as my concerns about undermining the stability of our legal system, lead me to believe that voting against the constitutional framework applied today would do more harm than good.”

In that quote we see the first instance of hand-wringing that this decision is about more than abortion. The guts of this case, Wilson seems to be saying, are about something more fundamental and esoteric: the legitimacy of the court.

Next up: the words of Justice Caleb Stegall. While he was the lone dissenter in the opinion, he repeated Wilson’s concern about legitimacy, writing: 

“The saga of this court’s section 1 jurisprudence has now taken its bizarre — but predicted — turn. … The betrayal of this court’s promise of neutral, uniform, and rational constitutional adjudication is as far-reaching as it is audacious — and its damaging impact on this institution’s legitimacy will be felt for years to come.”

Acknowledging the extremity of what he had written, Stegall continues, “I recognize the gravity of this language, and the besetting temptation to exaggerate the rhetoric of disagreement.” 

What strikes me here is not the disagreement — division is inherent in any split judicial opinion. The red flag comes from the dual mentions, from both sides of the decision, that the legitimacy of the court is at stake.

To punctuate his point, near the end of his dissent, Stegall circles back to the topic of legitimacy: “Unfortunately for Kansans, today our state’s high court has undermined its place as a respected institution grounded on legal principles, and risks losing whatever perceived legitimacy we once had.”

It’s a stinging attack, diminishing his own court in this way. 

Has the court been worried in the same way about its legitimacy in other recent decisions?

Scanning the 10 most recent Kansas Supreme Court decisions, questions of legitimacy are rare. Only two other cases use the words “legitimacy” or “legitimate,” and the most frequent mentions (five) occur in the companion case to this one: another abortion ruling. None of those references fret about the court’s own validity.

In its 2019 ruling on the constitutionality of abortion, I don’t see the court as concerned over its own legitimacy.

The watching eyes of the public seem to be making the court twitchy and self-conscious. Looking over its figurative shoulder, the court senses how intently we are watching — and the justices seem a bit “freaked out,” to use the least lawyerly phrase I can find.

Indeed, I am most definitely not a lawyer. The closest that I come to the law is teaching some basic communications law in my journalism courses.

Luckily, that distance from legal expertise makes me, in at least one way, the perfect person to write this column. I represent a growing group of everyday Americans who question the wisdom and legitimacy of the courts, a doubt seeded by the U.S. Supreme Court and the politics surrounding it.

Since 2000, the national approval rating for the nation’s highest court has slumped from 60% to 40% during 2022 and 2023, according to Gallup. The matter of abortion weighs heavily here. The Supreme Court overturned Roe v. Wade in 2022 in a decision that runs against public opinion.

That same series of polls shows that declining confidence in the court has overlapped with Americans viewing the court as too conservative. Starting in 2009, the percentage of people who viewed the court as too conservative more than doubled: from 19%to 42% in 2022, according to Gallup. 

To find a cause, consider the court’s recent decisions. The overturning of Roe v. Wade was seen by many as an aggressive overturning of well-established precedent that limited women’s rights. This term’s decisions have bolstered the power and immunity of the president and gutted the power of federal agencies. It’s been rare that this court has operated with any moderation and common sense, like it did in restricting the gun rights of domestic abusers in June. 

Apart from rulings, Americans have seen other tumult on the court. The nomination process of new justices has been a series of partisan mud wrestling matches, featuring a sexual assault allegation and Mitch McConnell arm-twisting. Recent ethics concerns raise questions of how much we know about the justices’ financial allegiances and whether Justice Clarence Thomas will ever again find a conflict of interest significant enough to recuse himself.

In the eyes of some Americans, this mishmash of controversy isn’t just tumult. It’s outright corruption.

The justices — including Chief Justice John Roberts — have shown that they know about this erosion in public confidence. Note how the concept of “legitimacy” appears here in his words.

“If the court doesn’t retain its legitimate function of interpreting the constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is,” Roberts said in 2022.

But Roberts’ call for public confidence is unconvincing: Trust the court because everyone else will do an even worse job? That argument doesn’t hold up in the face of public frustration.

Approval of state courts is suffering too. According to a 2023 poll of the National Center for State Courts, confidence in state courts slid from 70% to 61% between 2020 and 2023. The report hopefully writes that, “But there are indicators that it may be ready to rebound” because the confidence nudged up merely a single percentage point last year. That is some judicial optimism.

On the responsibility of delivering equal justice for all? The same poll shows that during the past few years, Americans have flipped on state courts: for the first time, more people now think state courts are doing “not well” or “not well at all.”

So, it makes sense that the Kansas Supreme Court has been voicing concerns about its legitimacy recently. The national atmosphere has been hostile to the most visible court in America — and to its justices when they dare to appear in public.

And it makes particular sense that these existential questions appear in Hodes and Nauser v. Stanek, an opinion considering the constitutionality of abortion in Kansas. Abortion rights have defined decades of legal nomination battles, opinions and lobbying efforts.

With the U.S. Supreme Court seeding doubts about all American courts, and with the issue of abortion focusing the public’s ire, the Kansas Supreme Court might be defined, beyond its control, by national forces: vital, but newly diminished and nervous.

Eric Thomas teaches visual journalism and photojournalism at the William Allen White School of Journalism and Mass Communication at the University of Kansas in Lawrence. 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.

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