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Expert Brief

Legislative Assaults on State Courts – 2019

A Brennan Center review of bills already introduced in state legislatures in 2019 shows that across the country, legislators are considering changes to state courts that would diminish the role or independence of the judiciary, or make it harder for judges to do their job.

Last Updated: March 25, 2019
Published: February 11, 2019

Our democracy depends on fair and independent courts to protect against abuses of power, provide checks and balances, and administer justice without regard to outside pressures. State courts, where 95 percent of all cases are filed, play a crucial role – yet they are often far more vulnerable to political pressure and interference than the federal courts.

A Brennan Center review of bills already introduced in state legislatures in 2019 shows that across the country, legislators are considering changes to state courts that would diminish the role or independence of the judiciary, or make it harder for judges to do their job.* So far this year, bills introduced in at least 22 state legislatures risk weakening the courts by giving political actors more control over judicial selection, judicial decision-making, or judicial administration.

Efforts to manipulate courts are not new. Over the course of 2018, the Brennan Center documented 60 bills in 18 states that would have politicized or undermined the independence of state courts. Bills passed out of the legislature in West Virginia, where legislators impeached every sitting justice on its supreme court, and in North Carolina, where the General Assembly passed and put before voters a proposal to give the assembly new powers to pick judges – voters ultimately rejected the proposal.  

This year, with a newly solidified conservative majority on the United States Supreme Court, state courts are likely to become increasingly important venues for fights over certain fundamental rights – inviting more political attention. President Trump’s continued attacks on courts for rulings he disagrees with, meanwhile, provide political cover to state legislators to do the same.

*These bills were identified by the Brennan Center through CQ StateTrack, provided by the Piper Fund, as well as media reports and the National Center for State Courts’ Gavel to Gavel database.

As of March 25, legislators in at least 22 states are considering at least 42 bills to diminish the role or independence of state courts.

  • Sixteen bills in 13 states would inject more politics into how judges are selected.
  • Nine bills in 8 states would prevent courts from deciding certain cases or take away courts’ authority to manage their own rules or resources.
  • Six states are considering legislation that would lead to more guns in courthouses, even if courts themselves wanted to prohibit weapons.
  • Additional bills would strip courts' jurisdiction, shrink courts for partisan gain, or subject judges to more frequent elections and political pressure.

 

One pattern that has emerged this year is partisan elected officials seeking more power to decide which judges hear cases challenging their actions. In Iowa, a bill would give legislators more control over that state’s nominating commissions,  weakening the role of the state bar association, while a Kentucky bill to change which judges hear high-profile cases against the government has advanced. Several of this year’s bills are also examples of legislative retaliation against courts for specific rulings – rulings related to marriage equality and reproductive rights in Iowa, and a high-profile ruling striking down a pension-reform plan prioritized by the governor and the legislature in Kentucky.

To be sure, many states’ methods of selecting judges are in need of reform, but changes must be carefully designed to protect judicial independence and avoid political and special interest pressure on the judiciary. The Brennan Center recently put forth a proposal for judicial selection that addresses contemporary threats to judicial independence.

The following is an overview of the bills being introduced on the state level, broken down by how they might weaken the independence or power of the judiciary (as of March 25, 2019).

Compromising Judicial Selection

In 13 states, 16 bills would change how judges are selected, making the process more partisan or political. States use several different methods to select judges, including contested elections and “merit selection” systems, where candidates are vetted by an independent nominating commission. New bills would weaken existing safeguards that insulate judges from outside pressure, including subjecting judges to new elections, weakening the role of independent nominating commissions, and giving partisan legislators an outsized role in choosing judges.

Laws that create a partisan advantage in judicial selection:

  • In Alaska, the Judicial Council, which vets judicial candidates and creates a shortlist of candidates for the governor, is comprised of three attorney members appointed by the Alaska Bar Association (ABA), three non-lawyers appointed by the governor, and the state’s chief justice. A proposed constitutional amendment (SJR 3) would subject the lawyer members to confirmation by the legislature, giving partisan legislators the power to reject the ABA’s appointees. A similar bill in Wyoming (SF 141) would have given the senate the power to reject bar appointees to the state’s independent judicial nominating commission. SF 141 passed out of committee but did not receive a floor vote. 
  • In Iowa, a bill (HF 503/SF 237) would similarly remake the independent nominating commissions the state uses to select judges. The proposal would remove eight commissioners elected by members of the state bar and a seat reserved for a supreme court justice, replacing them with commissioners appointed by the majority and minority leaders in the legislature. Since the governor also gets to appoint eight commissioners, the bill would guarantee that members of the governor’s party appoint 12 out of the 16 commissioners, and all commissioners would be political appointees. The bill would also cut short Justice Mark Cady’s term as chief justice and the terms of future chief justices. Conservative Iowa legislators’ frustration with the state supreme court dates back to at least the 2009 Varnum v. Brien decision, written by Cady, in which the court found a right to marriage equality under the state constitution. Following that decision, conservatives successfully campaigned to defeat three justices in their retention elections. While bills have been introduced in previous years to change the system for picking judges, lawmakers are prioritizing judicial selection this session. SF 237 passed through the Iowa Senate with an amendment that would limit the changes to Iowa’s statewide appellate court commission, leaving lower court nominating commissions unchanged.      
  • In Kentucky, a proposed constitutional amendment (HB 123) would put party labels on the ballot for the election of state supreme court justices and judges for intermediate appellate and trial courts. Currently, judicial elections are nonpartisan. This bill comes after Governor Matt Bevin called a unanimous Kentucky Supreme Court decision striking down his pension reform plan “an unprecedented power grab by activist judges.” Similarly, a proposed constitutional amendment in Arkansas (HJR 1006) would have voters elect judges at all levels on a partisan basis. Currently, judicial elections are nonpartisan, but in 2018 conservative groups unsuccessfully spent more than a million dollars to defeat a justice they attacked as “liberal judicial activist.” 
  • A proposed constitutional amendment in Pennsylvania (HB 196) would have voters elect appellate judges by districts, rather than statewide. While districted elections are not always harmful, they can open the door to gerrymandering and other partisan gamesmanship. The Republican sponsor of HB 196 introduced the same bill last session after Democrats gained a majority of seats on the Pennsylvania Supreme Court. 

Laws that would make judicial selection more political:

  • A bill in Arizona (HB 2043) would require municipal court judges who wish to serve another four-year term to stand for retention elections. Currently, the largest cities in Arizona use an independent commission to determine whether judges should be reappointed. Requiring judges to appear before voters every four years increases the political pressures they face while making decisions from the bench, threatening judicial independence.
  • Proposed constitutional amendments in Hawaii (SB 864HB 1311/SB 1457)  would give the state senate the power to reject the reappointment of a sitting supreme court justice. Currently, the independent Judicial Selection Commission makes the final decision as to whether or not to reappoint a sitting justice. These proposals would give a political branch of government new power over a process regarded as effective at insulating judges from political pressure. A bill in Tennessee (HB 1257/SB 1408) would similarly give the legislature new power to reject appointments and reappointments of lower court judges and senior judges. Currently, the governor selects lower court appointees from a list submitted by the state’s trial court vacancy commission, and senior judges are appointed by the state supreme court. 
  • A proposed constitutional amendment in Oklahoma (SJR 12) would require judges, who already must stand for periodic retention elections, to win 60 percent of the vote in order to remain on the bench. Currently they must win 50 percent of the vote. Retention elections already place undesirable political pressures on judicial decision-making; the need to command a supermajority of the vote could worsen these pressures. In recent years, Oklahoma officials have gone to extremes to bring courts in line with their views, even threatening to impeach multiple justices and to ignore a court ruling halting two executions. SJR 12 was approved by the Oklahoma Senate Rules Committee. 
  • In Montana, a bill (HB 484) would require the Secretary of State to include in voter pamphlets arguments for and against the retention of an incumbent justice who is seeking reelection but not facing an opponent. The arguments for and against retention would be prepared by two committees—one in favor of retention and one opposed to retention—appointed by the majority leaders in the legislature and the governor. Providing information to voters is essential, particularly in low-information judicial races, but requiring that a partisan committee formulate arguments against retention of a justice may increase the likelihood that justices will consider the possible arguments against them while deciding controversial cases.   

Laws that would weaken or eliminate independent judicial nominating commissions:

  • In Missouri, a proposed constitutional amendment (HJR 2) would eliminate the state’s judicial selection commissions, the independent bodies that vet judicial applicants and put forth a shortlist from which the governor must choose. This amendment would give the governor the power to directly appoint supreme court, court of appeals, and some circuit judges, subject only to confirmation by two-thirds of the state senate. Republicans currently hold a two-thirds supermajority in the legislature and have accused the state supreme court of going “rogue” in recent decisions, including one upholding a local minimum wage provision, and decried the nominating commission itself for being too liberal.
  • A proposed constitutional amendment in Missouri (SJR 3) and bills in South Carolina (H 3953S 170) would keep nominating commissions in name but significantly limit their role. Currently those states’ commissions submit their three preferred candidates to the appointing authority (the governor in Missouri and the legislature in South Carolina). The proposed legislation would limit the commissions’ role to determining only whether each applicant is “qualified,” and require them to submit all qualified nominees to the appointing authority, giving the political branches more choices and influence over the selection of judges. SJR 3 passed out of the Missouri Senate’s Government Reform Committee.  

Interfering with Judicial Decision-Making

Eight states are considering legislation that would put undesirable pressure or restrictions on judicial decision-making. Judges must be able to decide cases without fear of retribution, yet some of these proposals would increase the likelihood of a judge facing backlash for unpopular rulings. Others would empower politicians to alter court procedures for reasons other than fair and efficient decision-making.

  • A proposed constitutional amendment in Arizona (HCR 2006) would give the legislature and voters the power to amend or repeal any substantive, procedural or evidentiary rules made by the state supreme court. The proposal would amend the constitution to state plainly that enacting rules on these matters “is a legislative power,” and “not a power inherent in the judiciary.”
  • A bill in South Carolina (S 29) would prohibit courts from applying foreign law when it would violate a person’s fundamental rights. The bill’s language comes from model legislation designed by an anti-Muslim activist, intended to stoke public suspicion of Islam and Sharia law, according to reports by the Southern Poverty Law Center and the Brennan Center. A similar bill was introduced in Iowa (HF 314). A proposal in Oregon (SB 467) more explicitly states that courts “may not consider Sharia law in making judicial decisions.” The Southern Poverty Law Center reports that, since 2010, 43 states have considered and 14 have enacted anti-Sharia law bills like these.
  • Bills in Texas (HB 1035) and Colorado (HB 1140) would prohibit state courts from penalizing or stopping any person or religious organization from discriminating against an individual on the basis of sexual orientation or gender identity in the name of religious freedom. The proposals also provide that aggrieved parties may sue the judicial branch for damages if a court was found to have violated the law. These bills are similar to other “religious freedom” bills introduced in Texas in recent years.
  • A proposed constitutional amendment in West Virginia (SJR 5) would have taken away the authority of state courts to hear challenges to state house or senate impeachment proceedings. In the fall of 2018, acting justices on the West Virginia Supreme Court halted the impeachment trials of three supreme court justices, finding that the state house’s articles of impeachment violated constitutional procedural requirements.
  • An amendment to another bill in West Virginia (SB 398) related to the compensation of senior judges. It would have withheld judicial retirement benefits until the state supreme court revisited and overturned its decision to intervene in the impeachment proceedings. The amendment passed out of the Senate but was removed in the House.  
  • In Tennessee, a bill (HB 1369/SB 1282) would reject the U.S. Supreme Court’s decision in Obergefell v. Hodges, in which the Court recognized same-sex marriage “and any other decision purporting to strike down natural marriage” as unauthoritative, void, and of no effect. The bill would also prohibit state and local officials from giving effect to any court order that “has the effect of violating Tennessee’s laws protecting natural marriage.” Similar bills were introduced and failed to advance in 2016 and 2017.

Shield the Legislature from Court Rulings

Proposals in two states would make it more difficult, or impossible, for courts to carry out one of their core responsibilities, interpreting whether state or federal laws satisfy the United States Constitution.

  • A proposed constitutional amendment in Missouri (HJR 34/HJR 35) would allow the Missouri General Assembly or Missouri voters to vote on whether federal laws are constitutional. If voters or state legislators decided a federal law was unconstitutional, Missouri courts would be prohibited from enforcing that law, and stripped of jurisdiction over any cases involving that law or any similar state law.
  • A bill in Texas (HB 1347) would allow the legislature to declare a decision of any federal court, including the United States Supreme Court, unconstitutional. If the Legislature declared a federal court decision unconstitutional, including a decision striking down a Texas law, no Texas official could enforce that federal court ruling.

Judge-Shopping for Partisan Advantage

In addition to picking who reaches the bench in the first instance, legislators can gain an advantage in the courts by handpicking the judges who will or will not hear certain cases in their respective jurisdictions. They can do this by redrawing judicial districts, changing court jurisdiction, or by altering methods for assigning cases.

  • A bill in Kentucky (SB 2) would change which courts hear constitutional challenges to state statutes or regulations. The bill would allow the government defendants to request that such a challenge be heard by a randomly assigned judge from anywhere in the state rather than the Circuit Court of Franklin County, home to the state capital. This is likely because the Franklin County court includes a judge whom Gov. Matt Bevin called an “incompetent hack” and tried to remove from the case that struck down the governor’s pension reform law. SB 2 passed the Kentucky Senate over the objections of Kentucky’s Chief Justice who said the bill would have “a ruinous effect on the court of justice.”

Altering Judicial Term Lengths and Limits

The shorter a judge’s term length, the greater the pressure that judge may feel to rule with electoral or political considerations in mind. Term limits can be desirable in many instances, but judges must be allowed sufficient time to serve and should not be removed from the bench for partisan reasons.

  • In West Virginia, a proposed constitutional amendment (SJR 6) would have reduced the terms of supreme court justices from 12 years to eight, subjecting those judges to more frequent elections and thus accompanying political pressure.

Changing the Size of Courts

Adding or removing seats from a court allows legislatures or governors to gain advantage in courts without needing to change the rules for how judges are selected. They can add seats for themselves to fill, or remove seats held by judges they disagree with.

  • In Washington, a proposed constitutional amendment (HJR 4201) and a bill (HB 1081) would reduce the number of justices on the state supreme court from nine to five. Voters would elect all five justices in the 2020 general election. Washington’s supreme court has faced numerous legislative attempts to alter its makeup and constrain its authority as a result of a prolonged battle over a 2012 decision finding that the legislature was inadequately funding the state’s education system.

Allowing Firearms in Court

Courts continue to be pulled into broader efforts to empower gun owners to carry weapons in public spaces.

  • Bills in Illinois (HB 248HB 911), Indiana (HB 1235), Mississippi (HB 524), South Carolina (HB 3073HB 3472), Texas (HB 1085), and Virginia (SB 338) would require courts to allow judges, retired judges, court employees not tasked with security, attorneys general and assistant attorneys general, or others to carry a firearm into a courthouse even if that court had a rule prohibiting weapons. HB 1235 passed the Indiana House, and H 3472 passed the South Carolina House.

Image: Eric Thayer / Getty