PUBLISHED BY THE KANSAS BAR ASSOCIATION OCTOBER 2009 Editor:LAW Sarah Shipman, staff attorney, Silver LakeWISE Bank, Topeka Coordinators: Kathryn Gardner, a career law clerk to the Hon. Sam A. Crow, and Meg Wickham, Kansas Bar Association Greetings from the Kansas Supreme Court and the Kansas Bar Association (KBA). Welcome to this edition of Law Wise and the second edition of the 2009-2010 school year. The theme of October’s edition is “A Civics Lesson” for educators. IN THIS ISSUE Welcome ................................................ 1 Welcome Calendar of Events ................................. 1 By Sarah Shipman, Law Wise editor Going Green .......................................... 1 ormer Justice Sandra Day O’Connor has launched a web-based civics Feducation initiative. When discussing the motives behind the creation Constitutional Rights Foundation .......... 2 of the program, Justice O’Connor has observed that most people can name the judges on American Idol but less than 15 percent of the general public Supreme Court Summer Institute .......... 4 can name a chief justice of the Supreme Court. A stated goal of the Law- Related Education Committee of the Kansas Bar Association is to provide Courts in Kansas .................................... 5 civics and law related information and resources for educators. This issue of Law Wise includes links to Justice O’Connor’s Web site, among others, an Law Wise Survey .................................... 6 article and lesson on the independence of the judiciary, information about the structure of the Kansas Court System, and information about an op- Capitol Roundtable Activity ................... 7 portunity for educators to study at the Supreme Court Summer Institute. New Kansas Courts Video Available ....... 7 Technology for Teachers ......................... 7 Resources for Law-Related Education .... 8 c a l e n d a r o f e v e n t s GoinG Green Nov. 9, 2009 Accepting interest state- This will be the last school year Law Wise will be printed for dis- ments for Supreme Court tribution. We will instead e-mail the publication. We will make Summer Institute 2010 exceptions to those who are unable to access a computer. Please e- Jan. 8, 2010 Last day for Supreme Court mail to [email protected] the e-mail address where you would Summer Institute interest like to receive your copy of Law Wise. Thank you. statements Spring 2010 Kansas Bar Association YLS Law Wise is a tool for educators statewide to find new avenues of Mock Trial Competition. presenting civics lessons and ideas. The KBA also feels a responsibil- Presented by Shook, ity to educate through example by going green. We will continue Hardy & Bacon LLP to offer the printed mailed version for the 2009-2010 school year, but would like to present the choice of going paperless by providing May 1, 2010 Law Day the publication through e-mail. Please e-mail Meg Wickham, KBA manager of public services to receive your “green” issue of Law Wise and be taken off the paper mailing list. You can always access past Law Wise issues on our Web site at http://www.ksbar.org/public/ public_resources/lawwise. Thank you for helping us “go green!” 2 LAW WISE | OCTOBER 2009 c o n s t I t U t I o n a l r IGH t s f o U n d a t I o n B i l l o f R i g h t s i n A c t i o n , s p r I n G 1998 (14:2) I n d e p e n d e c e o f t H e J U d I c I a r y a n I n d e p e n d e n t J U d I c I a r y Source: http://www.crf-usa.org/bill-of-rights-in-action/bria-14-2-c.html ne hundred years ago, a spirit of reform swept America. Defenders of the courts worry that political attacks on judg- OLed by the progressives, people who believed in clean es and basic changes to our judicial system could undermine government and that government had to help solve society’s the independence of the judiciary and seriously affect the deli- problems, the movement elected representatives to Congress cate balance of powers contained in our constitutional system. and to statehouses around America. Progressives passed leg- But how did an independent judiciary come about and what islation aimed at improving working conditions, breaking up does it mean to have one? business monopolies, creating welfare programs for the poor, and assuring pure food and drug standards. Businesses hurt tHe third BrancH of Government by this new legislation often opposed the new laws and chal- When the framers of the Constitution arrived in Philadel- lenged them in court. phia in 1787 to consider a new form of government for the Many of these lawsuits ended up in the U.S. Supreme Court United States, it was a foregone conclusion that it would have led by Chief Justice Melville Weston Fuller. Fuller and a ma- three branches. Well-educated students of history, the fram- jority of the justices at the time often took a dim view of gov- ers had been influenced by great political thinkers of the past, ernment regulation and believed that social problems would including the Frenchman Montesquieu. Central to his ideas best be solved by the workings of a free and uncontrolled mar- about government was the concept of separation of powers. He ket. They based many of their court opinions on the due pro- believed that the best way to preserve individual liberty and cess clause of the 14th Amendment, which says no state shall avoid tyranny was to divide the powers of government into the “deprive any person of life, liberty, or property, without due legislative, executive, and judicial function. In this way, none process of law . .” In interpreting this clause, they developed of the branches would possess all of the power and each would the doctrine of substantive due process. balance one another off. Under this doctrine, the Court would review the substance Those at the Constitutional Convention worried about pow- of governmental laws and would find unconstitutional those er too. Fresh from the revolutionary experience, they wanted laws that interfered with a right to property, or freedom to to make sure that the government had enough power to solve make contracts, or some other liberty. For example, in 1897 the country’s problems, but not too much power to ride rough- the state of New York passed a labor law forbidding employ- shod over the states or individual citizens. Many viewed the ees of a company from working more than 60 hours in one judicial branch as, in the words of Alexander Hamilton, “the week. An employer sued claiming that the law violated the least dangerous to the political rights of the Constitution” and Constitution. The Supreme Court, in the case of Lochner v. as a necessary buffer between the powerful presidency and New York (1905), struck down the law reasoning that there was Congress. “no reasonable ground for interfering with the liberty of per- Article III of the Constitution states: “The judicial Power sons or the right of free contract, by determining the hours of of the United States shall be vested in one Supreme Court, labor.” The Court went on to strike down dozens and dozens and in such inferior Courts as the Congress may from time to of progressive-passed laws. time ordain and establish.” The article goes on to describe what The actions of the Supreme Court raised a storm of contro- kinds of cases the “judicial Power” would be empowered to versy. Progressives complained that the Court was countering hear. Language in the article suggests that the framers wanted the will of the majority and usurping the powers of the Legisla- the judicial branch to serve an independent role free from po- ture. Others claimed that the Court lack judicial restraint and litical pressure. It stated that judges should “hold their Offices was too eager to declare laws unconstitutional. Yet, the Fuller during good Behavior.” This meant judges could only be re- Court’s decisions stood until the 1930s when a later Court all moved for misconduct. It also stated that judges should receive but abandoned the doctrine of substantive due process. a salary that could not be reduced during the time they held Criticism of the role of courts in our society, however, did office. This would assure that judges could not be punished by not end. Ironically, in recent years, conservatives often com- salary reductions if they made unpopular decisions. plain about “activist” judges or fear that judges are legislating Though the framers created an independent judiciary in Ar- from the bench. Some have favored laws that would restrict ticle III, they also included some checks and balances against judicial power by limiting courts’ jurisdiction or judges’ dis- too much judicial power. The Constitution gave the president cretion in sentencing. Other groups target judges who render the power to appoint judges with the “Advice and Consent of unpopular decisions for removal from office through impeach- the Senate.” It gave Congress the power to create or eliminate ment, recall, or re-election. lower federal courts and determine what cases could be ap- pealed to them. (Continued on next page) OCTOBER 2009 | Law Wise 3 Oddly, the Constitution says nothing about the one job the of government to enforce them. Supreme Court is most known for today. That is the power to While judicial review expanded the power of the judiciary, review federal and state laws to determine whether or not they it also placed judges in a new role.