A political effort to impeach the entire West Virginia Supreme Court. A ballot measure aimed at giving North Carolina’s Legislature sweeping new powers to pick judges. And a bid by lawmakers to punish Arkansas’s top court for an adverse ruling on a politically charged issue.
A new Brennan Center analysis finds that attempts by state legislators to politicize or weaken courts were particularly widespread this year. That’s troubling, because when politicians drag courts and judges into the partisan muck, it becomes harder for courts to be, and appear, independent from the political actors they’re supposed to check. The three-legged stool of our democracy can stand only if the three branches are equally able to check each other.
In all in 2018, lawmakers in at least 18 states considered at least 60 bills that would have diminished or politicized the role of the judiciary. Several stories stand out, and may foreshadow what’s ahead.
The North Carolina General Assembly continued a multi-year effort to gain an upper hand in the courts. In 2018 alone, this included largely unsuccessful proposals to gerrymander judicial districts and to cut judicial terms from eight years to two. In support of the latter proposal, one legislator remarked, referring to judges: “If you’re going to act like a legislator, perhaps you should run like one.”
The Legislature also asked North Carolina voters, via a ballot measure proposing a constitutional amendment, to give it sweeping new power to pick judges. In a positive sign, however, this plan met significant resistance, including litigation that forced the Legislature to rewrite the ballot language to be less misleading, and bipartisan opposition from all five living former governors. Voters ultimately rejected the plan by a 30-point margin.
Two states saw partisan efforts to remove sitting state supreme court justices. In Pennsylvania, Republican lawmakers tried to impeach four sitting justices on the state’s Supreme Court — all Democrats — after the court struck down the state’s congressional map as an unconstitutional partisan gerrymander in January. The impeachment effort failed after drawing widespread condemnation.
West Virginia lawmakers were more successful in responding to a spending scandal involving several justices with an effort to impeach every justice on the state Supreme Court. While the spending drew bipartisan disapproval, the Republican House majority timed the impeachment effort to give a politically-aligned governor the power to fill any open seats on the court, leading to charges that the effort was a power grab. Ultimately, two justices resigned in time for their seats to be filled by election rather than appointment, including one who accused the legislature of “positioning to impose their own party preferences” on the court. After a failed Senate impeachment vote and an unusual state Supreme Court decision keeping another justice on the bench, the governor was left with just one seat to fill. Still, between that seat and the two seats won in elections by former Republican legislators handpicked by the governor, the governor will appoint a majority of the five-member court.
And in Arkansas, at least, attacks that began in 2018 are poised to continue into next year. Lawmakers there blocked a proposed 2020 budget for the state’s Supreme Court after the court ruled 6–1 to block “Issue 1,” a tort reform amendment, from appearing on the ballot. State Senator Trent Garner (R), applauded the effort by resurfacing an old tweet sent after the Issue 1 ruling which warned: “There will be consequences, starting with [the court’s] budget.” Garner has said he will continue to challenge the court’s budget during next year’s legislative session.
These states were far from the only ones to see legislative attacks on their courts. We documented 27 bills this year in eight states that sought to change how those states select judges to give one party a leg up in the courts. Legislators in seven other states went even farther trying to limit courts’ ability to strike down legislative acts — introducing bills to require a supermajority to do so, or simply stripping parts of the court’s docket. Other bills would have given political officials more power over court rules or resources, or increased the likelihood of judges being punished for unpopular rulings. On the bright side, only a handful of these bills gained any traction.
With state courts already under fire, it is essential to recognize that state courts are poised to get more attention in the coming years. The rightward shift on the U.S. Supreme Court means many advocates may increasingly turn to state courts to protect their rights on everything from reproductive rights to redistricting.
More attention could mean more attacks. But it may also mean more opportunities for bipartisan coalitions to send the message that judges aren’t supposed to be politicians, and that the independence of the courts needs to be protected.