Wednesday, October 16, 2019

Supreme Court Brief asks 'What's the matter with Kansas?'

Tony Mauro and Marcia Coyle ask “What's the matter with Kansas” on the National Law Journal’s Supreme Court Brief. Today the Supreme Court  will hear argument in Kansas v. Garcia, the second of three cases this term in which the Sunflower State is a named party. On October 7, the first argument was Kahler v. Kansas. And on November 4, the court will hear Kansas v. Glover. All three are criminal cases.

It is rare but not unprecedented for a state to become directly involved in so many cases in a single term. According to Dan Schweitzer, Supreme Court counsel for the National Association of Attorneys General, Texas, Michigan and California—all large states—have argued three cases before the Supreme Court in recent terms, and in 2010, California had four.

In July, when the argument dates were set, Kansas Attorney General Derek Schmidt remarked in a statement: “It is highly unusual for a single state, especially a small state like Kansas, to have three cases pending before the court simultaneously. We are working vigorously to prepare for these three arguments and look forward to presenting the state’s cases in the fall.”

So how can the frequent appearances of Kansas be explained? We asked former Kansas solicitor general Stephen McAllister, a former U.S. Supreme Court law clerk and a scholar of the high court who is currently U.S. Attorney for the District of Kansas.

“As a general matter, Kansas has a Supreme Court that is off the rails,” McAllister said, stressing that he was speaking on his own behalf, not for the government. “They’ve gone overboard on the defendants’ side and they’ve gotten the Supreme Court’s attention.”

The Kansas Supreme Court in the Kahler case went against the defendant on an insanity defense, but in Garcia, an immigration case, and Glover, a Fourth Amendment traffic stop dispute, the Kansas high court ruled for the defendant.

To handle the trilogy, Kansas AG Schmidt has rolled up his sleeves himself. He will be arguing today in the Garcia case, his third U.S. Supreme Court argument. State solicitor general Toby Crouse was at the lectern on October 7, and Crouse will do it again in November.

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