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Analysis

In 2018, a Spate of Partisan Attacks on State Courts

Efforts by politicians to drag courts through the partisan muck are proliferating, a Brennan Center analysis finds

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.

(Image: Getty)