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Legislative Assaults on State Courts – 2019

A Brennan Center review of bills introduced in state legislatures in 2019 shows that across the country, legislators considered changes to state courts that would have diminished the role or independence of the judiciary, or made it harder for judges to do their job.

Last Updated: January 24, 2020
Published: February 11, 2019

This post was updated on Janu­ary 24, 2020

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 intro­duced in state legis­latures in 2019 shows that across the coun­try, legis­lat­ors considered changes to state courts that would have dimin­ished the role or inde­pend­ence of the judi­ciary, or made it harder for judges to do their job.* In 2019, bills intro­duced in at least 25 state legis­latures risked 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 lawmakers passed and put before voters a proposal to give the legis­lature new powers to pick judges – voters ulti­mately rejec­ted the proposal.  

Now, with a newly solid­i­fied conser­vat­ive major­ity on the U.S. 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.

In 2019, legis­lat­ors in at least 25 states considered at least 48 bills to dimin­ish the role or inde­pend­ence of state courts.

  • Eight­een bills in four­teen states would have injec­ted more polit­ics into how judges are selec­ted.
  • Ten bills in nine states would have preven­ted courts from decid­ing certain cases or take away courts’ author­ity to manage their own rules or resources.
  • Eleven bills in seven states would have led to more guns in court­houses, even if courts them­selves wanted to prohibit weapons.
  • Nine bills in seven states would have stripped courts’ juris­dic­tion, shrunk courts for partisan gain, or subjec­ted judges to more frequent elec­tions and polit­ical pres­sure.
  • Twenty bills advanced in signi­fic­ant ways in 2019, either passing favor­ably out of a commit­tee or subcom­mit­tee, receiv­ing a hear­ing, passing through one house of the legis­lature, or even getting enacted into law.
Legislative Assaults on State Courts - 2019

One pattern that emerged in 2019 was partisan elec­ted offi­cials seek­ing more power to decide which judges hear cases chal­len­ging their actions. In Kentucky and Flor­ida, bills to change which judges hear high-profile cases against the govern­ment advanced, one of which passed in Kentucky. 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, rulings related to repro­duct­ive rights in Alaska and Kansas, and a high-profile ruling strik­ing down a pension-reform plan prior­it­ized by the governor and the legis­lature in Kentucky. In Iowa, while bills have been intro­duced in previ­ous years to change the system for pick­ing judges, lawmakers success­fully gave the governor more control over that state’s nomin­at­ing commis­sion.

While not an act of the legis­lature, Alaska’s governor carried out one of the most direct attacks on the judi­ciary that we observed in 2019. The governor used his line item veto author­ity to strike $335,000 from the judi­ciary’s budget in retali­ation for a state supreme court decision related to state fund­ing of abor­tion services. The governor’s veto state­ment said, “[t]he legis­lat­ive and exec­ut­ive branch are opposed to state-funded elect­ive abor­tions; the only branch of govern­ment that insists on state-funded elect­ive abor­tions is the Supreme Court. The annual cost of elect­ive abor­tions is reflec­ted by this reduc­tion.” 

And in Texas, the legis­lature passed a bill (HB 3040/SB 1728) estab­lish­ing a commis­sion to study how the state selects its judges. Currently, Texas holds partisan elec­tions for most judge­ships, and supreme court elec­tions there have long been expens­ive and attrac­ted contro­versy. While not included in this list of legis­lat­ive attacks on state courts, the timing of this bill – shortly after the elec­tion of nine­teen Black women to local judge­ships in Hous­ton the previ­ous year – raises concerns about the motives behind the study.

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 intro­duced on the state level in 2019, broken down by how they might weaken the inde­pend­ence or power of the judi­ciary.

Comprom­ising Judi­cial Selec­tion

In 14 states, 18 bills would have changed 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 have weakened 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 state bar, three non-lawyers appoin­ted by the governor, and the state’s chief justice. A proposed consti­tu­tional amend­ment (SJR 3) would have subjec­ted the lawyer members to confirm­a­tion by the legis­lature, giving partisan legis­lat­ors the power to reject the bar’s appointees. SJR 3 was repor­ted out of the Alaska Senate Judi­ciary Commit­tee. A similar bill in Wyom­ing (SF 141) would have given the state senate the power to reject members of the state’s inde­pend­ent judi­cial nomin­at­ing commis­sion chosen by the governor and the state bar. SF 141 passed out of the Wyom­ing Senate Trans­port­a­tion, High­ways & Milit­ary Affairs Commit­tee with an amend­ment remov­ing the provi­sion that would have subjec­ted the commis­sion­ers elec­ted by the bar to senate confirm­a­tion.
  • In Iowa, the legis­lature passed a bill (SF 638) giving the governor author­ity to appoint a major­ity of the 17-member nomin­at­ing commis­sion the state uses to nomin­ate judges for the state’s supreme court and inter­me­di­ate court of appeals. Previ­ously, the commis­sion was equally divided between members chosen by the governor and members chosen by the state bar, and it was chaired by the senior-most supreme court justice who was not the chief justice. SF 638 removed the justice from the commis­sion, gave the governor an addi­tional appoint­ment, and reduced the term of the chief justice, includ­ing former Chief Justice Mark Cady, from the justice’s full term in office to two years. Earlier propos­als (HF 503/SF 237) would have removed the eight commis­sion­ers elec­ted by the state bar and the seat reserved for a supreme court justice, repla­cing them with commis­sion­ers appoin­ted by the major­ity and minor­ity lead­ers in the legis­lature. Those bills would have guar­an­teed that members of the governor’s party appoin­ted 12 out of the 16 commis­sion­ers, and all commis­sion­ers would be polit­ical appointees. Conser­vat­ive 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’s consti­tu­tion. Follow­ing that decision, conser­vat­ives success­fully campaigned to defeat three justices in their reten­tion elec­tions. SF 237 passed through the Iowa Senate with an amend­ment that would have limited the changes to Iowa’s statewide appel­late court commis­sion, leav­ing lower court nomin­at­ing commis­sions unchanged. 
  • In Kentucky, a proposed consti­tu­tional amend­ment (HB 123) would have 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 was intro­duced after former Gov. 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 had 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 had 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. HB 196 passed the Pennsylvania House.

Laws that would make judi­cial selec­tion more polit­ical:

  • A bill in Arizona (HB 2043) would have required muni­cipal court judges who wished 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. HB 2043 was repor­ted out of three commit­tees in the Arizona House.
  • Proposed consti­tu­tional amend­ments in Hawaii (SB 864HB 1311/SB 1457) would have given the state senate the power to reject the reappoint­ment of a sitting supreme court justice. Currently, Hawaii’s inde­pend­ent Judi­cial Selec­tion Commis­sion makes the final decision as to whether or not to reappoint a sitting justice. These propos­als would have given 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 have simil­arly given 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 have required 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 have required 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 have been 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. HB 484 received a hear­ing in the Montana House State Admin­is­tra­tion Commit­tee.

Laws that would weaken or elim­in­ate inde­pend­ent judi­cial nomin­at­ing commis­sions:

  • In Missouri, a proposed consti­tu­tional amend­ment (HJR 2) would have elim­in­ated 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 have given 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 have kept nomin­at­ing commis­sions in name but signi­fic­antly limited 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 have limited the commis­sions’ role to determ­in­ing only whether each applic­ant is “qual­i­fied,” and required 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.  
  • A proposed consti­tu­tional amend­ment in Kansas (SCR 1610) would have elim­in­ated the state’s judi­cial selec­tion commis­sion, giving the governor or chief justice the power to make appoint­ments to the state supreme court, subject to the state senate’s confirm­a­tion. Under current law, the commis­sion recom­mends three candid­ates for the governor to choose from for appoint­ment. In recent years, litig­a­tion related to fund­ing for the state’s public educa­tion system have resul­ted in several attempts by the legis­lature to constrain the Kansas Supreme Court’s juris­dic­tion.

Inter­fer­ing with Judi­cial Decision-Making

Nine states considered legis­la­tion that would have 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 have increased the like­li­hood of a judge facing back­lash for unpop­u­lar rulings. Others would have empowered politi­cians to alter court proced­ures for reas­ons other than fair and effi­cient decision-making.

  • A proposed consti­tu­tional amend­ment in Arizona (HCR 2006) would have given 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 have amended the consti­tu­tion to state plainly that enact­ing rules on these matters “is a legis­lat­ive power,” and “not a power inher­ent in the judi­ciary.” A similar proposal in Arkan­sas was certi­fied to go before voters last Novem­ber but was ulti­mately ruled invalid by the Arkan­sas Supreme Court.
  • A bill in South Caro­lina (S 29) would have prohib­ited courts from apply­ing foreign law when it would viol­ate a person’s funda­mental rights. The bill’s language came 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 (SPLC) and the Bren­nan Center. A similar bill was intro­duced in Iowa (HF 314). A proposal in Oregon (SB 467) more expli­citly stated that courts “may not consider Sharia law in making judi­cial decisions.” SPLC 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 have prohib­ited 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 would have provided that aggrieved parties could 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. HB 1035 received a hear­ing in the Texas House State Affairs Commit­tee.
  • 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. SJR 5 passed through the West Virginia Senate but was ulti­mately rejec­ted by the House.
  • 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 West Virginia Senate but was removed in the House.  
  • In Tennessee, a bill (HB 1369/SB 1282) would have rejec­ted 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 have also prohib­ited 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.
  • In Kansas, a proposed consti­tu­tional amend­ment (HCR 5010) would have required the state supreme court to issue its opin­ions on cases or decisions on motions within one year after it received all final argu­ments. HCR 505 was intro­duced a month before the Kansas Supreme Court issued its ruling that the state’s consti­tu­tion protects a woman’s right to an abor­tion. The court’s decision came more than two years after it heard the case. A similar proposal was intro­duced in Flor­ida in 2017.

Shield the Legis­lature from Court Rulings

Propos­als in three states would have made 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 have allowed the legis­lature 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 have been prohib­ited from enfor­cing that law, and stripped of juris­dic­tion over any cases involving that law or any similar state law. Similar propos­als were intro­duced in 2018 and 2017.
  • A bill in Texas (HB 1347) 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 federal court decision uncon­sti­tu­tional, includ­ing a decision strik­ing down a Texas law, no Texas offi­cial could enforce that federal court ruling. Lawmakers in Idaho intro­duced similar bills in 2018 and 2017. HB 1347 received a hear­ing in the Texas House State Affairs Commit­tee.
  • In Alaska, a bill (HB 179) would have added “exer­cising legis­lat­ive power” as a basis for impeach­ing a judge and would have exemp­ted such a find­ing by the legis­lature from judi­cial review. Similar propos­als were intro­duced in Alaska in 2018 and in Kansas in 2016 but failed to advance through the legis­lature.

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 have changed which courts hear consti­tu­tional chal­lenges to state stat­utes or regu­la­tions. The bill would have allowed the govern­ment defend­ants to request that such a chal­lenge be heard by a special judge selec­ted, at random, by the chief justice of the state supreme court 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 former 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 with an amend­ment over the objec­tions of Kentuck­y’s Chief Justice who said the bill would have “a ruin­ous effect on the court of justice.” As amended, the bill would have required the clerk of the circuit court in the county in which the chal­lenge was origin­ally filed to select “by random lottery draw” another county in Kentucky to hear the case. A similar bill in Flor­ida (SB 1630) would have required the Clerk of the Flor­ida Supreme Court to use a “blind, random selec­tion process” to assign consti­tu­tional chal­lenges to circuit courts across the state. Currently, such chal­lenges are filed in the state capital, Leon County, and a number of state laws have been over­turned as uncon­sti­tu­tional by Leon County circuit judges, most recently a law making it harder for local juris­dic­tions to enact gun control. SB 1630 was approved by the Flor­ida Senate Judi­ciary Commit­tee.
  • Another bill in Kentucky (SB 214) changed the juris­dic­tion and venue for cases involving chal­lenges to legis­lat­ive districts from the Circuit Court of Frank­lin County to a panel of three circuit court judges. SB 214 was signed into law.

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 have reduced 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 Geor­gia (SB 224), Illinois (HB 248HB 911), Indi­ana (HB 1235), Missis­sippi (HB 524), South Caro­lina (HB 3073HB 3472), Texas (HB 1085HB 2051HB 3136), and Virginia (SB 338) would have required 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, H 3472 passed the South Caro­lina House, HB 2051 was repor­ted out of the Texas Home­land Secur­ity & Public Safety Commit­tee, and HB 3136 was repor­ted out of the Texas House Judi­ciary & Civil Juris­pru­dence Commit­tee.

Image: Eric Thayer / Getty