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Expert Brief

Legislative Assaults on State Courts – 2018

Legislatures in at least 18 states are considering legislation that would diminish the role or independence of the courts.

Published: February 7, 2018

This post was updated on Decem­ber 17, 2018. Read our summary of the find­ings.

In the Trump era, courts frequently appear to be the last line of defense against partisan over­reach. But in many states, courts’ vital role in our demo­cracy is under threat. 

In our demo­cratic system, judges serve as an inde­pend­ent check on the polit­ical branches, not a tool of the legis­lature or the governor. Courts are required to decide cases regard­less of polit­ics or external pres­sures, and to ensure that the other branches do not over­step their author­ity or encroach on indi­vidual rights. 

Yet this year, legis­lat­ors in at least 18 states considered at least 60 bills that would have dimin­ished the role or inde­pend­ence of the judi­cial branch, or simply made it harder for judges to do their job — weak­en­ing the checks and balances that under­lie our demo­cratic system. To identify bills, the Bren­nan Center reviewed legis­la­tion iden­ti­fied by CQ Stat­eT­rack, provided by Piper Fund, media reports, and the National Center for State Court’s Gavel to Gavel website.

These bills threatened this balance of power in a vari­ety of ways. Many sought to give the legis­lature or governor more power over judi­cial selec­tion, often for partisan advant­age; others gave the legis­lature the power to over­ride court decisions and decide the consti­tu­tion­al­ity of laws they them­selves wrote; still others exer­ted polit­ical, finan­cial, or other pres­sures on courts to change the outcome of future cases.

In 2017, the Bren­nan Center docu­mented several trends with respect to legis­lat­ive assaults on the courts, includ­ing 45 bills intro­duced that year. In 2018, many of those trends contin­ued, while new ones emerged.

In 2018, lawmakers in at least 18 states considered legis­la­tion that would have dimin­ished the role or inde­pend­ence of the courts. This included brazen efforts to impeach justices in Pennsylvania and West Virginia, to give the legis­lature signi­fic­ant new author­ity over choos­ing judges in North Caro­lina, and to limit the state supreme court’s juris­dic­tion in Kansas:

  • Twenty-seven bills in eight states would have injec­ted more polit­ics into how judges are selec­ted
  • Ten bills in seven states would have increased the like­li­hood of judges facing discip­line or retri­bu­tion for unpop­u­lar decisions, or would have politi­cized court rules or processes
  • Six bills in three states would have cut judi­cial resources or estab­lished more polit­ical control over courts in exchange for resources
  • Four bills in three states would have manip­u­lated judi­cial terms, either imme­di­ately remov­ing sitting judges or subject­ing judges to more frequent polit­ical pres­sures
  • Eleven bills in seven states would have restric­ted courts’ power to find legis­lat­ive acts uncon­sti­tu­tional, or allowed the legis­lature to over­ride court decisions
  • Twelve bills advanced in signi­fic­ant ways in 2018, either passing favor­ably out of a commit­tee or subcom­mit­tee, receiv­ing a hear­ing, passing through one house of the legis­lature, or even going before voters as a consti­tu­tional amend­ment

 

Many of these efforts were concen­trated in a hand­ful of states. In two states, North Caro­lina and Oklahoma, numer­ous legis­lat­ive propos­als reflect a concer­ted effort by legis­lat­ors to gain a partisan advant­age in the courts. In North Caro­lina, these propos­als followed Repub­lic­ans’ loss of the governor­ship and a conser­vat­ive major­ity on the state supreme court in 2016, while retain­ing a veto-proof legis­lat­ive major­ity. In Oklahoma, bills followed high-profile rulings on the death penaltyabor­tion, and reli­gion that ran against the state’s conser­vat­ive polit­ics. They continue a trend in the state which saw 15 bills to change how judges are selec­ted in 2016 alone.  

In Pennsylvania and Kansas, impeach­ment and juris­dic­tion-strip­ping propos­als were intro­duced in direct response to indi­vidual court rulings inter­pret­ing the states’ consti­tu­tions. In Pennsylvania, the Supreme Court ruled in Janu­ary that the state’s congres­sional map was an uncon­sti­tu­tional partisan gerry­mander, prompt­ing an impeach­ment effort. In Kansas, propos­als to limit judi­cial juris­dic­tion over matters of public educa­tion fund­ing came as the legis­lature faced a court-imposed dead­line to fulfil its consti­tu­tional oblig­a­tion to suffi­ciently fund the public educa­tion system.  

Finally, in Iowa, a dispute between the Legis­lature and judi­ciary over allow­ing guns in court­houses at least partially fueled a number of propos­als.

And, while these states may be the locus of anti-court legis­la­tion, legis­lat­ive threats to courts can be seen across the coun­try. These bills aim to:

Change Judi­cial Selec­tion Systems: In eight states, 27 bills would have changed how judges are selec­ted. In most cases, the result would have been to inject more polit­ics into the selec­tion process. States use a vari­ety of meth­ods to select judges, but the prac­tices that best preserve judi­cial inde­pend­ence and integ­rity are those that insu­late judges from the constant polit­ical and partisan pres­sures that other branches face. To this end, many states use nonpar­tisan judi­cial nomin­at­ing commis­sions to vet and recom­mend judges for appoint­ment. But a new legis­lat­ive trend this year would keep those commis­sions in name while signi­fic­antly shrink­ing their role. 

Add polit­ics to the selec­tion process

  • In Flor­ida (HB 753SB 1030) and Oklahoma (SB 700), bills would have taken away the abil­ity of state bar asso­ci­ations to appoint members to the states’ judi­cial nomin­at­ing commis­sions. Instead, both state legis­latures proposed to give them­selves the power to nomin­ate or appoint those commis­sion­ers. In Iowa (SF 327), a bill would have left the bar’s repres­ent­at­ives on the commis­sion, but made them “nonvot­ing, advis­ory” members. 
  • In Hawaii (SB 673HB 2563/SB 3039), proposed consti­tu­tional amend­ments would have required Senate confirm­a­tion of sitting judges’ reappoint­ment. Currently Hawaii’s Judi­cial Selec­tion Commis­sion makes those decisions, but this proposal would have effect­ively given the Senate veto power over a process regarded as effect­ive at insu­lat­ing judges from polit­ical pres­sure. 
  • In Oklahoma (SJR 42), a proposed consti­tu­tional amend­ment, would have required that any elec­tion for the state’s appel­late courts be partisan. Currently, Oklahoma appel­late judges take part only in nonpar­tisan reten­tion elec­tions. In 2016 and 2017, North Caro­lina made a similar change, convert­ing both Supreme Court and lower court elec­tions to partisan races. 
  • Another proposed consti­tu­tional amend­ment in Oklahoma (SJR 14) would have required sitting judges stand­ing for reten­tion elec­tions to attain 60 percent of the vote, rather than the current 50 percent of the vote. In 2016, four judges on Oklaho­ma’s highest courts stood for reten­tion — two held their seats with less than 60 percent, and the other two won with less than 61.5 percent of the vote. The need to win a super­ma­jor­ity of the public’s support could make Oklaho­ma’s judges more reluct­ant to make contro­ver­sial rulings. 
  • A bill in Oklahoma (SB 971), a conser­vat­ive state with a major­ity of its Supreme Court appoin­ted by former Demo­cratic governors, would have required that the appoint­ing governor’s name appear next to a candid­ate’s name when they stand for reten­tion elec­tion. The proposal would have also required the ballot to show the age of the judge and the number of years the judge has served.  

Weaken or elim­in­ate nonpar­tisan judi­cial nomin­at­ing commis­sions

  • In Missouri (SJR 28), Oklahoma (SJR 43), and South Caro­lina (H 3204H 3207H 4043), proposed legis­la­tion would have left selec­tion commis­sions in place, but signi­fic­antly limited their role in the appoint­ment process. Currently the commis­sions in those states recom­mend three candid­ates to the Governor, or to the Legis­lature in the case of South Caro­lina, to choose from for appoint­ment. These bills would have required that commis­sions put forward every “qual­i­fied” applic­ant, substan­tially curtail­ing the commis­sion’s role. Legis­lat­ors in North Caro­lina floated a similar proposal this year. 
  • In Iowa (HJR 6HJR 2004) and Missouri (HJR 47), proposed consti­tu­tional amend­ments would have elim­in­ated the states’ judi­cial selec­tion commis­sions, giving governors in those states the power to appoint judges without vetting by a commis­sion.

Create a partisan advant­age in judi­cial selec­tion

  • In North Caro­lina, the legis­lature placed a consti­tu­tional amend­ment before voters (H 3) to require the governor to select judges to fill interim vacan­cies from a list created by the legis­lature. Voters ulti­mately rejec­ted the proposal which included a nominal role for a nomin­at­ing commis­sion. Two other bills (H 240H 241) would have simil­arly trans­ferred to the General Assembly (the state’s legis­lature) the governor’s current author­ity to appoint judges to fill interim district court vacan­cies and appoint special super­ior court judges. Another bill (H 335) would have required the governor, when filling a vacancy on the Supreme Court, Court of Appeals, or a super­ior court, to select from a list provided by the lead­ers of the polit­ical party of the vacat­ing judge. These bills were intro­duced by Repub­lic­ans in the General Assembly after a Demo­crat was elec­ted governor.  
  • A bill in North Caro­lina (H 717) to redraw district court and super­ior court judi­cial districts would have dispro­por­tion­ately harmed voters of color and Demo­cratic voters, amount­ing to judi­cial gerry­man­der­ing, accord­ing to analyses by NC Policy Watch and the South­ern Coali­tion for Social Justice. Over-riding the governor’s veto, the Legis­lature passed a version of H 717 that redis­tric­ted only portions of the state, along with another bill (S 757) which redis­tric­ted several popu­lous counties. Another bill (H 677) would have then added district court judges to the three-judge panels which, in North Caro­lina, hear high-stakes cases related to redis­trict­ing and chal­lenges to the consti­tu­tion­al­ity of legis­lat­ive acts.
  • Proposed consti­tu­tional amend­ments in Pennsylvania (HB 829SJR 1144SJR 22) would have had voters elect Supreme Court justices by seven districts of equal popu­la­tion, rather than statewide. While distric­ted elec­tions are not neces­sar­ily harm­ful, they can open the door to gerry­man­der­ing and other partisan games­man­ship. HB 829 was intro­duced by a Repub­lican legis­lator without explan­a­tion follow­ing an elec­tion in which Demo­crats gained a major­ity of seats on the state Supreme Court.

Politi­cize Judi­cial Rulings, Discip­line, or Court Rules: Seven states considered legis­la­tion that would have put undesir­able polit­ical pres­sure on judi­cial decision­mak­ing. Judges must be able to decide cases without fear of retri­bu­tion, but some of these bills would increase the like­li­hood of a judge losing their job for making an unpop­u­lar ruling. Other propos­als would empower politi­cians to alter court proced­ures for reas­ons other than fair and effi­cient decision­mak­ing.

  • A bill in Alaska (HB 251) would have added “exer­cising legis­lat­ive power” as grounds for judi­cial impeach­ment, and would have expressly exemp­ted a find­ing of this kind of malfeas­ance from judi­cial review. This language is similar to a Kansas bill that failed to make it through the legis­lature in the 2015–2016 session. That bill provided that Supreme Court justices could be impeached for “attempt­ing to usurp the power of the legis­lat­ive or exec­ut­ive branch of govern­ment.”
  • In Pennsylvania, twelve legis­lat­ors co-sponsored resol­u­tions (HR 766HR 767HR 768HR 769) call­ing for the impeach­ment of four sitting Supreme Court justices. The resol­u­tions were a response to the Pennsylvania Supreme Court’s decision strik­ing down the state’s congres­sional map as an uncon­sti­tu­tional partisan gerry­mander. The court’s decision likely cost Repub­lic­ans seats in the 2018 elec­tion, and all twelve co-spon­sors were Repub­lic­ans.
  • In West Virginia, the House voted (HR 202) to impeach the four justices that had not yet resigned in the wake of a scan­dal over use of state resources. While the alleg­a­tions against some justices were troub­ling, the timing of the impeach­ment betrayed legis­lat­ors’ goal of using the scan­dal to gain a polit­ical advant­age on the court by clear­ing the bench and giving the conser­vat­ive governor the abil­ity to appoint multiple justices. Ulti­mately, two of the impeached justices managed to keep their seats on the court while the other two resigned their posi­tions before their trial in the Senate.
  • A pair of bills in Wash­ing­ton (HB 2636/SB 6405) would have required the state’s Office of Finan­cial Manage­ment to produce, and issue by press release, a “fiscal note” estim­at­ing the costs of Wash­ing­ton Supreme Court decisions with a budget­ary impact above $500,000. These bills were intro­duced in the middle of a prolonged battle between the court and the legis­lature result­ing from a 2012 court decision find­ing that the state was inad­equately fund­ing its educa­tion system.
  • A proposed consti­tu­tional amend­ment in New Mexico (HJR 6) would have trans­ferred the power to set court rules and proced­ures from the judi­cial branch to the legis­lature. A similar proposal will appear on Arkansas’s ballot this Novem­ber. Arkansas’s Legis­lature voted to put before voters a consti­tu­tional amend­ment which would, in addi­tion to capping damages and attor­ney’s fees in certain lawsuits, allow the Legis­lature to over­ride the Arkan­sas Supreme Court’s rules by a three-fifths vote.  
  • Bills in Idaho (HB 419) and Kentucky (SB 229) would have deemed a court ruling unen­force­able if it relied in part on foreign law. This legis­la­tion is part of a national trend of bills put forward by anti-Muslim groups aimed at prohib­it­ing Sharia law from being considered in state courts. Accord­ing to the South­ern Poverty Law Center, 14 states have enacted such legis­la­tion since 2010. HB 419 passed the Idaho House.

Reduce or Control Court Resources: Three states would have signi­fic­antly reduced judi­cial branch resources, or deman­ded increased control over the judi­cial branch in exchange for resources. When legis­lat­ors threaten to cut judi­cial fund­ing unless judges adhere to the legis­lature’s wishes, it viol­ates the separ­a­tion of powers prin­ciples that our demo­cracy relies on. And actual losses of fund­ing or resources have forced courts to close or led to case back­logs, making it harder to access justice.       

  • A bill in North Caro­lina (S 617) would have largely elim­in­ated “emer­gency judges,” which lower courts had previ­ously relied on to help alle­vi­ate back­logs. Last year, restric­tions on the use of these judges forced courts to cancel court sessions.    
  • A series of bills in Iowa (SF 2044SF 2052SF 2104HF 2036) respon­ded to Iowa Chief Justice Mark Cady’s direct­ive that the judi­cial branch would continue to enforce a court­house weapons ban despite a new Iowa law allow­ing guns in court­houses. One proposal provided that, if an Iowa court enforces a weapons ban, the court must pay rent to the state and must pay for an armed secur­ity guard using funds from the chief judge’s salary. Two other bills would have expressly allowed persons to carry weapons in court­houses, regard­less of any court prohib­i­tions. Another would have reduced Supreme Court justice’s salar­ies to $25,000, an approx­im­ately 85 percent pay cut. The spon­sor of the judi­cial salary bill said, “If the Supreme Court wants to act like legis­lat­ors they need to start getting paid like legis­lat­ors.” Iowa’s part-time legis­lat­ors make $25,000 annu­ally.
  • A bill in New York (A 09505) would have, in exchange for giving the judi­cial branch an addi­tional 0.5 percent budget increase, required that judges file monthly certi­fic­a­tions that they worked for at least 8 hours on each work­day of the preced­ing month. The bill would have also required peri­odic audits of judi­cial salar­ies and oper­at­ing expenses by the state comp­troller.    

Alter Judi­cial Term Lengths and Limits: Propos­als in three states would have altered judi­cial terms of office, exped­it­ing the removal of sitting judges and increas­ing the frequency of judi­cial elec­tions. The shorter a judge’s term length, the greater the pres­sure that judge will feel to rule with elect­oral or polit­ical, rather than legal, consid­er­a­tions in mind. And, while term limits can be bene­fi­cial, judges must be allowed suffi­cient time to serve and should not be removed from the bench for partisan reas­ons.

  • In North Caro­lina (S 698), where judges are elec­ted in newly-partisan races, a bill would have reduced all judi­cial terms to two years, subject­ing judges to perpetual campaigns and magni­fy­ing the reselec­tion pres­sures judges already face. One legis­lator support­ing the bill said, of judges, “if you’re going to act like a legis­lator, perhaps you should run like one.” 
  • In Iowa (HJR 2002), where appoin­ted judges retain their seats via non-partisan reten­tion elec­tions, a proposed amend­ment to the consti­tu­tion would have cut Supreme Court justices’ terms in half from eight years to four years.
  • Another proposed consti­tu­tional amend­ment in Iowa (HJR 2001) would have main­tained Supreme Court justices’ current eight-year terms, but limited justices to a single term. More than half the current justices, includ­ing all justices appoin­ted by a Demo­cratic governor, have served for more than eight years.
  • A bill in Oklahoma (SB 699) would have required appel­late judges and justices to retire when the sum of their years of judi­cial service and their age equals 80 years. If imple­men­ted, this bill would require the retire­ment of seven members of the nine-member Oklahoma Supreme Court. 

Shield the Legis­lature from Court Rulings: Propos­als in seven states would have made it more diffi­cult, or impossible, for either state or federal courts to rule a legis­lat­ive act uncon­sti­tu­tional. These bills under­mine one of the core respons­ib­il­it­ies of state courts, which is to ensure that the two other branches are adher­ing to the states’ consti­tu­tion. Two would have put legis­lat­ors’ inter­pret­a­tion of the United States Consti­tu­tion above that of the United States Supreme Court.

  • Bills in Iowa (HF 2106/SF 2153/SF 2282) would have prohib­ited the Iowa Supreme Court from find­ing a state law uncon­sti­tu­tional, unless a super­ma­jor­ity of justices — 5 of 7 — agreed. Currently, only 4 justices need to agree that a law is uncon­sti­tu­tional.
  • A bill in Wash­ing­ton (HB 1072) would have allowed the Legis­lature to over­ride, with a simple major­ity vote, any decision by a Wash­ing­ton court strik­ing down a legis­lat­ive act as uncon­sti­tu­tional. 
  • A bill in Idaho (HB 461) would have allowed the Legis­lature to declare a decision of any federal court, includ­ing the United States Supreme Court, uncon­sti­tu­tional. If the Legis­lature declared a decision uncon­sti­tu­tional, no Idaho offi­cial could enforce that decision. This bill was voted down in the House on Febru­ary 19, 2018.
  • Two proposed consti­tu­tional amend­ments in Kansas would have prohib­ited the judi­cial branch from fully enfor­cing the Kansas consti­tu­tion’s require­ment that the legis­lature provide for the educa­tion of its resid­ents. Follow­ing a Kansas Supreme Court ruling that Kansas’s public school system is inad­equately funded, the Legis­lature faced an April 30 dead­line to provide addi­tional fund­ing or face the poten­tial that the courts will close schools. One proposed amend­ment, SCR 1609, would have prohib­ited the judi­cial branch from clos­ing school districts, while HCR 5029 would have poten­tially removed educa­tion fund­ing ques­tions from the court’s juris­dic­tion entirely by prohib­it­ing any court from determ­in­ing the amount of fund­ing needed to satisfy the state consti­tu­tion. Possibly anti­cip­at­ing a similar dispute, a proposed consti­tu­tional amend­ment in Wyom­ing (SJR 4) provided that while the judi­ciary may declare that insuf­fi­cient public school fund­ing viol­ates the state consti­tu­tion, a court cannot command that the Legis­lature take any remedial action.
  • A proposed consti­tu­tional amend­ment in Missouri (HJR 92/HJR 94) would have allowed Missouri voters to vote on whether federal laws are consti­tu­tional. If the voters decided a federal law was uncon­sti­tu­tional, Missouri courts would have been prohib­ited from enfor­cing that law, and stripped of juris­dic­tion over any cases involving that law or any similar state law.
  • A House Memorial in Flor­ida (HM 137) asked the United States Congress to propose a consti­tu­tional amend­ment provid­ing that Congress and state legis­latures may over­rule, by a 60 percent vote, court decisions strik­ing down federal or state laws.

Change Size of CourtsCourt pack­ing and court shrink­ing, adding or remov­ing seats from a court is another way for legis­latures or governors to gain a partisan advant­age in their state’s courts. In recent history, Geor­gia and Arizona added seats to their state supreme courts to do just that. But remov­ing sitting justices from the bench can have a similar impact.

  • In Oklahoma (HB 1699), a bill would have reduced the number of justices on the state Supreme Court from nine to five. The bill’s formula for determ­in­ing which current justices retain their seats would most likely have resul­ted in changed ideo­lo­gical control of the court within two years.

Fire­arms in Courtrooms: Courts have also been pulled into broader debates about gun rights in public spaces. In addi­tion to the Iowa Legis­lature’s response to the Chief Justice’s efforts to limit guns in court­houses, at least one state considered a bill that would make it easier to bring guns into court­houses or courtrooms.

  • In Ohio(HB 622), a bill would have author­ized a judge or magis­trate who is a concealed hand­gun licensee to carry a weapon in the courtroom. 

 

Image: Eric Thayer / Getty