It is difficult to overstate the importance of state courts. They are where 95 percent of all cases in the country are filed and their high courts usually have the final word on questions of state law. They have considerable power over matters as important as the death penalty, funding for public schools, the environment, voting rights, and reproductive justice. And over the coming year, many state courts will also play a major role as states redraw their maps for state legislative and congressional offices.
Courts play a unique role in our democracy — a role that requires them to be independent of the two political branches and to make politically unpopular decisions on occasion. In recent years, however, this critical role has been under threat. State legislatures and governors across the country have regularly targeted state courts, often in retaliation for decisions they disagree with, in an effort to weaken courts’ power or gain more political influence over the judiciary. In 2020, for example, even with Covid-19 raging throughout the country, the Brennan Center documented at least 42 bills in 17 states that would have made state courts less independent or politicized judicial selection.
A Brennan Center review of bills already considered in state legislatures in 2021 shows that, as of May 14, legislators in at least 26 states introduced at least 93 bills that would politicize or undermine the independence of state courts.* At least ten of these bills have already been signed into law. An additional 50 bills have advanced in a significant way, either passing favorably out of a committee or subcommittee, receiving a hearing, passing through one house of the legislature, or receiving approval by the legislature to go on the ballot.
While state legislatures have considered similar legislation in the past, several troubling new trends are emerging in 2021. First, state courts are being targeted for their role in protecting voting rights during the 2020 election. In at least eight states, lawmakers considered bills that would either weaken courts’ power in election-related cases, create new tribunals to hear such cases, or target individual judges for their decisions in election cases. And in 21 states, legislation aimed broadly at the courts would impact election cases (and other types of litigation) by changing how judges get selected, which courts hear cases involving the state, or how judicial decisions get enforced.
In another trend, lawmakers in several states considered bills that would gerrymander existing courts or create new courts in the hopes of obtaining more favorable outcomes.
Take Texas, for example. Republican lawmakers there introduced six bills that would prohibit courts from modifying or suspending election-related deadlines or procedures, change the judges that hear election-related disputes, create a new “state elections tribunal” to hear certain election-related cases, consolidate appellate court districts in a way that would create a gerrymander, and establish a new statewide intermediate appellate court to hear certain cases involving the government so as to avoid jurisdiction in Democratic-leaning parts of the state.
And while the legislative sessions of 22 states have come to an end, many states are expected to have special sessions this fall for redistricting. In some states, this could open the door to further efforts to manipulate or retaliate against state courts.
As of May 14, legislators in at least 26 states are considering at least 93 bills targeting state courts.
- 31 bills in 14 states would put pressure or restrictions on judicial decision-making, target individual judges for unpopular rulings, or take away courts’ authority to manage their own rules or resources.
- 6 bills in 5 states would either gerrymander existing courts or create new courts, in an effort to obtain more favorable outcomes.
- 3 bills in 2 states would change the judges or courts that hear high-profile cases against the government.
- 18 bills in 10 states would either enable the override of court decisions or prohibit state officials, including judges, from enforcing particular laws or court decisions.
- 23 bills in 12 states would inject more politics into how judges are selected.
- 2 bills in 1 state would subject judges to more frequent political pressures by shortening term lengths.
- 10 bills in 6 states would allow more guns in courthouses, even if courts themselves wanted to prohibit weapons.
The following is an overview of bills recently introduced at the state level (as of May 14, 2021), broken down by how they might weaken the independence or power of the judiciary.
Table of Contents
- Interfering with Judicial Decision-Making
- Gerrymandering or Creating New Courts
- Judge-Shopping for Partisan Advantage
- Limits to the Enforcement of Court Rulings
- Changes to Judicial Selection
- Altering Judicial Term Lengths and Limits
- Allowing Firearms in Court
*These bills were identified by the Brennan Center through CQ FiscalNote and CQ StateTrack (provided by the Piper Fund), as well as media reports. Unlike previous years, the Brennan Center did not use the National Center for State Courts’ Gavel to Gavel database for identifying bills because it was unavailable.
Interfering with Judicial Decision-Making
Fourteen states are considering legislation that would limit judges’ decision-making powers, make it easier to target judges for unpopular decisions, limit judges’ control over procedural rules, or seek to remove individual judges for their rulings. In a new trend in 2021, many of these bills specifically target courts in connection with election-related cases. Legislators introduced these bills following the many election-related lawsuits filed last year, some of which resulted in changes to voting procedures or policies for the 2020 election because of the pandemic. Still more bills, which we did not include in our tally, prohibit alteration of state election laws and could arguably be interpreted to limit a court’s authority to rule on those laws.
Bills Limiting Judicial Review of State Election Laws or Targeting Judges in Election Cases
- A bill in Arizona (H.B. 2794) would prohibit any state governmental entity, including the courts, from modifying or agreeing to modify “any deadline, filing date, submittal date or other election-related date that is provided for in statute.” H.B. 2794 passed the Arizona House with a narrowly passed amendment removing the limitation on judicial review and was approved by the Arizona Senate Rules Committee.
- In Georgia, a state where voters of color are more likely than white voters to wait in hours-long lines to vote, the Republican-controlled legislature passed an omnibus voter suppression bill (S.B. 202) limiting the ability of some courts to expand polling place hours. S.B. 202 was signed into law by the state’s Republican governor.
- A bill in Kansas (H.B. 2332), which was passed by the state’s Republican-controlled legislature and enacted over the Democratic governor’s veto, explicitly provides that “neither the executive branch nor the judicial branch of state government shall have any authority to alter the state election laws.” Another bill (H.B. 2319) would have prohibited courts from changing the deadline for returning advance voting ballots. H.B. 2319 received a hearing in the Kansas House Committee on Elections but otherwise failed to move before the end of the legislative session.
- In Kentucky, an omnibus elections bill (H.B. 574), which was passed by the state’s Republican-controlled legislature with bipartisan support and signed into law by the Democratic governor, includes a provision that “no government official other than the General Assembly may suspend or revise any statute pertaining to elections.” Another bill (H.B. 162) would have given the legislature “sole and absolute discretion” to “accept, modify, or disregard the findings” of a trial court regarding the results of a recount. H.B. 162 failed to move before the end of the legislative session.
- A bill in Missouri (H.B. 1301) would have provided that “[d]etailed rules and procedures for counting votes, election deadlines, and other election procedures shall not be modified, waived, or altered in any fashion by state constitutional law, executive order, administrative rules, or any other type of rule or order except if a statute is held unconstitutional under the Constitution of the United States by any court of competent jurisdiction.” H.B. 1301 failed to move before the end of the legislative session.
- In Texas, a bill (H.B. 6, S.B. 7) would provide that a “public official may not knowingly issue an order altering or suspending an election standard, practice, or procedure mandated by law or rule unless the alteration or suspension is expressly authorized” under the state’s election code. Another bill (S.B. 1215) would require the secretary of state to create a “state elections tribunal” to hear certain election administration disputes. A third bill (S.B. 1589) would prohibit district or county court judges “with jurisdiction over any geographic area served by an election official who is a party in a proceeding for injunctive relief” from presiding over certain election-related proceedings “unless the election official serves statewide.” H.B. 6 was approved by the House Elections Committee. S.B. 7 passed the state Senate and was substituted with language from H.B. 6 in the state House. The substitute version of S.B. 7 passed the state House. S.B. 1589 passed the state Senate.
- In Minnesota, a resolution (H.R. 3) was introduced by Republican legislators calling for the impeachment of a county judge for “violating the plain language of the United States Constitution and Minnesota election law” in response to the judge’s approval of a consent decree that waived the postmark and witness requirements for absentee ballots during the 2020 election because of the pandemic.
- A similar resolution in Tennessee (H.R. 23/S.R. 21), cosponsored by 64 out of 73 Republicans in the state House, would have formed a legislative committee to consider the removal of a county judge over a decision she issued last year expanding access to absentee voting because of the pandemic. H.R. 23 was voted down by a subcommittee of the Tennessee House Civil Justice Committee.
Bills Targeting Judicial Powers
- In Arkansas, a proposed constitutional amendment (H.J.R. 1015/S.J.R. 7/S.J.R. 9) would have allowed the legislature, by a three-fifths vote of each house, to prescribe rules of pleading, practice, procedure, and evidence for all courts. Arkansas’s legislature has introduced similar proposals since at least 2013 in response to state supreme court decisions striking down various provisions of a 2003 “civil justice reform” law as violating the state’s constitutional grant of procedural rulemaking power to the judiciary. H.J.R. 1015/S.J.R. 7/S.J.R. 9 failed to move before the end of the legislative session.
- A bill in Iowa (H.F. 173) would prohibit state courts from applying foreign law if its application would result in the violation of a right guaranteed by the state or federal constitution. Similar bills, which are part of a national trend of “anti-Sharia laws” meant to provoke fears about Islam and Islamic law, were introduced in New Jersey, South Carolina, and West Virginia last year.
- Another bill in Iowa (H.F. 109) would have required a supermajority of justices (five of seven) on the state’s supreme court in order to invalidate a state law or issue a decision with the “effect of creating a new law.” If such a decision were issued, the court’s ruling would have no effect for one year, during which time lawmakers could “compel the attendance of specified justices to a public hearing to discuss and debate the justification for the decision” with legislators. Iowa’s supreme court has faced regular attacks from conservative lawmakers over the years in response to decisions related to marriage equality and reproductive rights. H.F. 109 was recommended for indefinite postponement by a subcommittee of the Iowa House Judiciary Committee.
- In Missouri, a bill (H.B. 850) would have prohibited state courts from rewriting false or misleading ballot language written by the legislature. Another bill (S.B. 399) would have barred courts from hearing challenges to ballot language written by the legislature. These bills were introduced by Republican lawmakers after two courts rewrote the ballot language for a legislatively proposed constitutional amendment to undo voter-approved redistricting reforms. H.B. 850 passed the state House and was substituted in the state Senate to include provisions that would have prohibited donations to election officials among other election-related changes. The substitute version of H.B. 850 passed the state Senate but failed to pass the state House before the end of the legislative session. S.B. 399 was approved by the Missouri Senate Local Government and Elections Committee but otherwise failed to move before the end of the legislative session.
- A bill in Montana (H.B. 141) would have provided that state courts “may only review the constitutionality of a law, not change or alter the law.” S.B. 141 failed to move before the end of the legislative session.
- In New York, a proposed constitutional amendment (A. 04446/S. 4541) would divide the state into three separate autonomous regions, with significant repercussions for the courts. In addition to each region having a separate court system, this amendment would require at least three-quarters of the judges on the state’s highest court, which would expand from 7 to 11 judges to include new judges appointed by each regional governor, to agree to reverse a regional superior court ruling or a lower court ruling that a regional superior court let stand. It would also remove all sitting members of the state’s judicial nominating commission, replacing them with commissioners chosen by each regional governor and leadership of each regional legislature. Currently, the 12-member commission is made up of 4 members chosen by the governor, 4 chosen by the state’s chief justice, and 1 each chosen by the majority and minority leaders in the legislature.
- A bill in Tennessee (H.B. 1072/S.B. 915) would have allowed a contested state law to take effect, even if it was blocked by a lower court for being unconstitutional, unless the state’s supreme court rules otherwise. Currently, judges have discretion as to whether a court’s decision should be stayed pending an appeal. The bill is reportedly a response to a court decision expanding access to absentee voting last year because of the pandemic. H.B. 1072 passed the state’s Republican-controlled legislature with an amendment removing the provision that provided for an automatic stay and awaits the Republican governor’s signature.
- In West Virginia, the legislature voted to put a proposed constitutional amendment (H.J.R. 2) on the ballot in 2022 that would prohibit state courts from intervening in impeachment proceedings and exempt from judicial review any judgment rendered by the state Senate after an impeachment trial. Another proposed amendment (S.J.R. 8) would have provided that state courts have no authority to interfere with any legislative proceedings. These measures were introduced in response to a 2018 decision by West Virginia’s supreme court that halted the legislature’s impeachment of three justices for their alleged abuse of state funds as being constitutionally and procedurally flawed. S.J.R. 8 failed to move before the end of the legislative session.
Bills Politicizing Judicial Discipline
- In Alaska, a bill (H.B. 207) would add “exercising legislative power” as a basis for impeaching a judge and exempt such a finding by the legislature from judicial review. A similar bill was introduced in Alaska in 2019 and 2018 and in Kansas in 2016 but failed to advance through the legislature.
- In Arkansas, a proposed constitutional amendment (H.J.R. 1006) would have created a procedure for the recall of state supreme court justices, court of appeals judges, circuit judges, or district judges. Judicial recall provisions are unusual and pose a substantial threat to judicial independence because they enable a judge to be targeted for an unpopular decision. Arkansas judges are already subject to regular judicial elections, and state supreme court races have attracted substantial money and attention over the years. In 2018, two conservative advocacy groups unsuccessfully spent $2.9 million to defeat an incumbent state supreme court justice that one of them attacked as a “liberal judicial activist.” A similar bill (H.B. 1925) would have created a procedure for the recall of county court judges. H.J.R. 1006 and H.B. 1925 both failed to move before the end of the legislative session.
- In Montana, a series of bills targeted the state’s judicial standards commission, which is responsible for investigating complaints against judges and recommending disciplinary action to the state’s supreme court. H.B. 380, which was passed by the state’s Republican-controlled legislature and signed into law by the Republican governor, requires every member of the commission to be confirmed by the state Senate. A proposed constitutional amendment (H.B. 685) would have restructured the commission so that a majority of its members are nonlawyers appointed by the governor and transferred direct authority over judicial discipline from the state’s supreme court to the commission. Another bill (S.B. 252, S.B. 318) would have allowed a judge to be impeached for not following the legislature’s preferred method of statutory interpretation. Another bill (S.B. 366) would have allowed citizens of the state to initiate an investigation of a judge with the commission for “violating the oath of office by continuously issuing unlawful and unconstitutional orders or decisions.” H.B. 685 was approved by the Montana House Judiciary Committee but otherwise failed to move before the end of the legislative session. S.B. 252 was approved by the Montana Senate Judiciary Committee but was indefinitely postponed on second reading. S.B. 318 passed the state Senate and was approved by the Montana House Judiciary Committee but was voted down on second reading. S.B. 366 received a hearing in the Montana Senate Judiciary Committee but was tabled in committee.
Gerrymandering or Creating New Courts
Proposals in five states would either gerrymander existing courts or create new ones, in response to the perception that current courts are insufficiently supportive of outcomes favored by the legislature. These kinds of structural changes, driven not by reasons of judicial efficiency or access to justice but rather perceived partisan advantage, threaten the judiciary’s independence from the political branches of government and risk its politicization.
- In Montana, the Republican-controlled legislature voted to put a legislatively referred state statute (H.B. 325) on the ballot in 2022 that would require state supreme court justices to be elected by district, rather than statewide. Districted elections aren’t always bad policy, but they can open the door to judicial gerrymandering and other forms of partisan gamesmanship, especially in states like Montana where lawmakers have accused the state’s courts of being “too liberal.” H.B. 325 was introduced by a Republican legislator with ties to a conservative group that has spent substantial sums in recent state supreme court elections. The proposal is also similar to a referendum that was struck down as unconstitutional by the state’s supreme court in 2012 due to a requirement that judicial candidates live in their district (H.B. 325 omits the residency requirement).
- In New Mexico, a proposed constitutional amendment (S.J.R. 21), introduced by a Republican lawmaker, would have likewise moved from statewide to districted elections for state supreme court justices. Currently, all five justices on New Mexico’s supreme court are Democrats, and the amendment would have required, beginning in 2024, all newly elected or appointed justices to be a resident of the district from which they were appointed or elected. S.J.R. 21 failed to move before the end of the legislative session.
- A similar proposed amendment in Pennsylvania (H.B. 38) would require appellate court judges, who currently run in statewide elections, to run in districts drawn by the legislature. The amendment would require sitting judges to run for reelection in one of the seven new judicial districts created by the legislature, and it does not include any restrictions on the legislature’s ability to draw (or redraw) these districts. The amendment would also give the legislature a say in the timing of the state’s transition to district-based elections, meaning the legislature could game the state’s move to districted elections to oust judges they dislike by drawing unfavorable district lines. H.B. 38 was first introduced by a Republican lawmaker in 2017 after Democrats gained a 5–2 majority on the state’s supreme court and gained momentum after a slew of election-related lawsuits in 2020, including a decision by the state’s supreme court that extended the deadline for returning mail ballots and allowed voters to use drop boxes, which was condemned by state Republicans as the product of an “activist court” that was “allowing one party to steal this election.” H.B. 38 was approved by the Pennsylvania House Judiciary Committee. If passed by the legislature again this year, it will go on the ballot in November 2021.
- A bill in Texas (S.B. 11) would have consolidated the state’s intermediate appellate courts by cutting the number of districts in half, amounting to a judicial gerrymander that would impact rural voters and voters of color. Democrats have won majorities on 7 of the state’s 14 appellate courts since 2018, and the redrawn districts would result in 5 appellate courts with Republican majorities and 2 with Democratic majorities. Introduced by a Republican state senator, S.B. 11 is reportedly based on recommendations by Texans for Lawsuit Reform, a tort reform group that has spent well over $4 million to support Republican judicial candidates over the years. The bill is opposed by appellate judges across the state, including one who said the new map would “make it such that, and virtually guarantee, that the number of justices of color that are on the bench right now would lose in the next election.” S.B. 11 was approved by the Texas Senate Committee on Jurisprudence, though the vote was later reconsidered and the bill was left pending in committee.
- Another bill in Texas (S.B. 1529), which shares the same sponsor as S.B. 11, would create a statewide intermediate appellate court comprised of six justices elected statewide to hear high-profile lawsuits involving the state. Such lawsuits are usually filed in Travis County, where the Third Court of Appeals, comprised of a majority of Democratic judges, has jurisdiction. No Democrats have won a statewide race in Texas since 1994, and all sitting justices on the state’s two high courts are Republican. S.B. 1529 has been described by a former Republican chief justice of the Fifth Court of Appeals as flying “in the face of a fair, impartial, and independent judiciary.” S.B. 1529 passed the state Senate with an amendment reducing the number of justices from six to five and providing the new court would not have jurisdiction over cases in which a party is challenging the constitutionality of a state law.
- A similar bill in Tennessee (H.B. 1130/S.B. 868) would have created a statewide elected trial court made up of three judges from each of the state’s grand divisions to hear high-profile cases involving the state. But the bill was amended to create a “court of special appeals” composed of the judge before whom the case was first filed and two judges chosen by the state’s chief justice from the two other grand divisions of the state. Currently, cases related to redistricting and the constitutionality of state actions are typically heard by judges in Davidson County. The bill’s primary sponsor, a Republican state senator, justified his proposal by saying, “Why should judges who are elected by the most liberal constituency in the state . . . be the ones deciding cases that affect the state in general?” H.B. 1130 passed the state’s Republican-controlled legislature and awaits the Republican governor’s signature.
Judge-Shopping for Partisan Advantage
In two states, bills would change courts’ jurisdiction or alter methods for assigning cases, in an apparent effort to obtain a more favorable venue for challenges to state law or the redistricting process. This kind of gamesmanship undermines the separation of powers between the courts and the political branches of government.
- Bills in Kentucky (H.B. 3) and Tennessee (H.B. 1196/S.B. 454) would require lawsuits challenging the constitutionality of state laws to be filed in the county where the plaintiff resides, as opposed to those states’ capitals. Republicans in Kentucky have complained that the judges in Franklin County (home to Frankfort, the state’s capital) are too liberal, and Republican legislators in Tennessee have said the same of the judges in Davidson County (home to Nashville, the state’s capital). H.B. 3 was signed into law by Kentucky’s Republican-controlled legislature over the state’s Democratic governor’s veto. H.B. 1196 passed the state House but otherwise failed to move before the end of the legislative session.
- Another bill in Tennessee (H.B. 1436/S.B. 1363) would have required redistricting lawsuits to be heard by a three-judge panel made up of court of appeals judges chosen by the state’s chief justice from each of the state’s three grand divisions. H.B. 1436 passed the state House but otherwise failed to move before the end of the legislative session.
Limits to the Enforcement of Court Rulings
Proposals in ten states would either enable the override of court decisions or prohibit state officials, including judges, from enforcing particular laws or court decisions.
- Bills in Arizona (H.B. 2111) and Texas (S.B. 513) would prohibit state courts from enforcing federal acts, laws, treaties, orders, rules, or regulations that are inconsistent with the laws of those states regarding the regulation of firearms. H.B. 2111 was signed into law by Arizona’s governor. S.B. 513 passed the Texas Senate.
- Similar bills in Arkansas (H.B. 1957, H.B. 1435/S.B. 298/S.B. 716) and Missouri (H.B. 85) would prohibit state courts from enforcing or assisting federal agencies or officers in enforcing any federal law, executive order, or agency directive that conflicts with the state constitution’s right to bear arms. Arkansas’s governor vetoed S.B. 298 but signed H.B. 1957, which was amended to provide exceptions for certain federal bans, into law. H.B. 85 passed both chambers of Missouri’s legislature and awaits the governor’s signature.
- Bills in North Carolina (H.B. 189) and Wyoming (H.B. 124/S.F. 81) would deem all federal acts, laws, executive orders, administrative orders, court orders, rules, and regulations whether past, present, or future that “infringe on the people’s right to keep and bear arms” as “null, void, and of no effect” in the state. Similar bills were introduced in Mississippi and Oklahoma last year. S.F. 81 passed the Wyoming Senate but otherwise failed to move before the end of the legislative session.
- Bills in Arizona (H.B. 2650) and Texas (H.B. 3326) would criminalize abortion and provide that any federal law, regulation, executive order, or court decision that purports to supersede, stay, or overrule the law is unconstitutional under both the state and federal constitution and is therefore void.
- A similar bill in Indiana (H.B. 1539) would have also criminalized abortion and deemed any court decision enjoining the law as “nonauthoritative, void, and of no force.” It would have also subjected federal officials attempting to enforce contrary court orders in the state to arrest by Indiana law enforcement. Similar bills were introduced in Indiana and Missouri last year. H.B 1539 failed to move before the end of Indiana’s legislative session.
- In Texas, a similar bill (H.B. 3641/S.B. 1671) would declare and treat the U.S. Supreme Court’s decision in Roe v. Wade as “void” and require all political divisions of the state, including courts, to enforce prohibitions and other restrictions on abortion without regard to Roe.
- In Indiana, a bill (S.B. 75) would have deemed any “order, rule, or edict of any kind” from the executive or judicial branch that “invades the constitutional or lawful authority of the legislative branch” as “null and void” until approved by the legislature. Another bill (S.B. 379) would have prohibited state courts from adopting administrative orders that suspend, toll, modify, amend, or prohibit the enforcement of a statute enacted by the legislature unless the court was specifically authorized by the legislature to issue such an order. S.B. 75 and S.B. 379 both failed to move before the end of the legislative session.
- A similar bill in Iowa (H.F. 752) would provide that “no law, statute, edict, mandate, ruling, regulation, executive order, court opinion, directive, or other usurpation that is unconstitutional shall have any legal or binding force” in the state.
- In New Hampshire, a proposed constitutional amendment (C.A.C.R. 11) would have allowed the legislature, with a simple majority vote, to present a ballot question to voters on whether a court decision interpreting the state’s constitution should be overturned. C.A.C.R. 11 received a hearing in the New Hampshire House Legislative Administration Committee but later died in committee.
- Bills in South Dakota (S.B. 122), Texas (H.B. 1215/H.B. 2930), and Wyoming (H.B. 256) would establish joint legislative committees to determine the constitutionality of federal actions, including court decisions. If the legislature declared such an action unconstitutional, state courts would be prohibited from enforcing that action. The three bills have near identical language, suggesting they may share an author. Similar bills have been introduced over the years in Idaho and Oklahoma. S.B. 122 received a hearing in the South Dakota Senate State Affairs Committee but was deferred. H.B. 256 died in the Wyoming House Corporations, Elections & Political Subdivisions Committee.
Changes to Judicial Selection
Twelve states are considering bills that would change how judges are selected, making the process more partisan or political. States use several different methods to select judges. Many utilize independent judicial nominating commissions to vet and recommend judicial candidates as a way to help insulate judges from political and partisan pressures during the selection process. But a majority of bills under consideration this session would either weaken states’ judicial nominating commissions by giving the governor or other political actors more control over the commissions or eliminate them altogether. Others would give political actors more control over judicial selection in other ways or alter the selection process for a perceived partisan advantage.
- In Alaska, a bill (S.B. 14) would prohibit the state’s judicial council from recommending a judicial candidate to the governor for appointment unless the council determined that the candidate would follow “strict constitutional interpretation of statutes and regulations and adhering to legislative intent” — in other words, the legislature’s preferred methods of legal interpretation. The bill would also require a majority of the members of the legislature in joint session to confirm the governor’s nominees. S.B. 14 was approved by the Alaska Senate Judiciary Committee.
- In Indiana, the Republican-controlled legislature passed a bill (H.B. 1453) giving the state’s Republican governor more control over the judicial nominating commissions used by Lake County and St. Joseph County for recommending trial court judges. The bill replaces the commissioners chosen by the local bar and local elected officials with three members chosen by the governor and three members chosen by county commissioners. Previously, both commissions were made up of an equal number of lawyers chosen by the local bar and nonlawyers chosen by local elected officials. H.B. 1453 also eliminates restrictions on the total number of commissioners from the same political party. Lake County and St. Joseph County are two of the four counties in Indiana with the largest populations of Democrats, and one of the H.B. 1453’s coauthors, a Republican lawmaker, said the bill was introduced at the governor’s request (a claim the governor’s office later denied). H.B. 1453 was signed into law by the governor.
- A similar proposed constitutional amendment in Indiana (S.J.R. 16) would have given partisan legislators more influence over the seven-member nominating commission the state uses to nominate appellate court judges by replacing two of the three lawyers chosen by the state bar with nonlawyers chosen by the House speaker and Senate president. Currently, the commission is equally divided between lawyers chosen by the state bar and nonlawyers chosen by the governor, and it is chaired by the state’s chief justice or their designee. S.J.R. 16 would have also subjected the governor’s appellate court nominees to Senate confirmation. S.J.R. 16 failed to move before the end of the legislative session.
- A bill in Iowa (S.F. 399) would require Senate confirmation of the state bar-appointed lawyer members on the state’s judicial nominating commission, giving legislators the power to reject the bar’s appointees. Iowa’s Republican-controlled legislature passed a bill in 2019 giving the state’s Republican governor authority to appoint a majority of the commission.
- In Missouri, proposed constitutional amendments (S.J.R. 24, S.J.R. 14) would have eliminated the state’s judicial nominating commission, giving the governor the power to directly appoint appellate courts judges, subject to approval by the state Senate. Republicans currently hold a two-thirds supermajority in the legislature and have accused the state’s supreme court of going “rogue” and the state’s nominating commission of being “too liberal.” H.J.R. 24 was approved by two committees in the state House but otherwise failed to move before the end of the legislative session. S.J.R. 14 received a hearing in Missouri Senate Governmental Accountability and Fiscal Oversight Committee but otherwise failed to move before the end of the legislative session.
- In Montana, the Republican-controlled legislature passed a similar bill (S.B. 140) giving the state’s Republican governor the power to directly fill interim vacancies on the state’s supreme court and district courts without vetting by the state’s judicial nominating commission. S.B. 140 was signed into law by the governor, prompting an immediate lawsuit by a bipartisan group of former state officials, as well as a standoff between Republicans in the state legislature and the state’s supreme court over legislative subpoenas seeking internal court records.
- Another bill in Montana (S.B. 402), which was passed by the state’s Republican-controlled legislature and would only go into effect if S.B. 140 is struck down by the state’s supreme court, would increase the size of the state’s judicial nominating commission from 7 members to 15, allowing the governor to appoint 12 nonlawyers, up from 4. The intent of this bill, according to its Republican sponsor, is to “give the governor a wider range of ability to make selections he would prefer to have appointed to these judicial positions,” as opposed to “judges that a lot of us would have considered to be too liberal.” S.B. 402 was signed into law by the state’s Republican governor.
- Proposals in Missouri (S.J.R. 1), Oklahoma (S.J.R. 2), and South Carolina (H. 3448/H. 4007, S. 192) would limit the role of those states’ nominating commissions by requiring them to submit to the governor, or the legislature in the case of South Carolina, a list of “all qualified nominees” to choose from for appointment, limiting the commission’s ability to put forth a shortlist of only the most qualified candidates. S.J.R. 1 failed to move before the end of Missouri’s legislative session. H. 3448/H. 4007 and S. 192 failed to move before the end of South Carolina’s legislative session.
- In North Carolina, a proposed constitutional amendment (H.B. 759) would require the governor to fill vacancies on the state’s appellate courts with one of three nominees recommended by the state executive committee of the same political party as the vacating judge or justice.
- A bill in Ohio (H.B. 149/S.B. 80), sponsored only by Republicans, would require party labels during the general election for appellate court races but not lower court races. Currently, all judicial candidates are chosen in partisan primaries but appear on the general election ballot without party labels. There are advantages and disadvantages to listing party labels, but making such a change for a perceived partisan advantage threatens to further politicize the selection process. Republicans have lost three seats on Ohio’s supreme court in the last two election cycles despite winning other statewide races on the ballot, and Democrats have a chance to flip the court majority next year. Both bills are opposed by the state judiciary, and the state’s Republican chief justice has advocated for the removal of party labels from the ballot for judicial primaries. Similar measures to make select judicial elections partisan have been introduced in Kentucky (H.B. 437, H.B. 517, H.B. 536) and Montana (H.B. 342, H.B. 355). Proposals to make all judicial elections partisan have been introduced in Arkansas (H.J.R. 1019), Kentucky (H.B. 474), Oklahoma (H.J.R. 1009), and West Virginia (S.B. 639). S.B. 80 passed the Ohio Senate. H.B. 437, H.B. 517, H.B. 536, and H.B. 474 failed to move before the end of Kentucky’s legislative session. H.B. 342 and H.B. 355 were both approved by the Montana House Judiciary Committee but were voted down on second reading. H.J.R. 1019 failed to move before the end of Arkansas’s legislative session. S.B. 639 failed to move before the end of West Virginia’s legislative session.
Altering Judicial Term Lengths and Limits
Proposals in Massachusetts would alter judicial term lengths in ways that would make state supreme court justices and lower court judges more dependent on political actors for their job security. The shorter a judge’s term, the greater the pressure that judge may feel to rule with electoral or political considerations in mind. In fact, studies have shown that reselection pressures can affect decision-making in troubling ways, including by leading judges to rule more harshly in criminal cases towards the end of their terms. Term limits can be desirable in many instances, but judges must be allowed sufficient time to serve, and judges’ tenure should not be manipulated for partisan reasons.
- In Massachusetts, where judges are appointed by the governor with approval by the state’s governor’s council and serve until the state’s mandatory retirement age of 70, a proposed constitutional amendment (H. 81/S. 1070) would instead provide for an initial term of seven years and require those wishing to serve for additional seven-year terms to be approved by a majority vote of the council after “due notice” and a public hearing. Another proposed amendment (S. 19) would provide for 10-year terms for appointed judges and require those wishing to serve for additional terms to be reappointed by the governor, subject to approval by the council. H. 81 was introduced by a Democratic lawmaker, and S. 1070 and S. 19 were introduced by Democratic lawmakers “by request” of their constituents, a practice common in Massachusetts. Currently, all of the justices on Massachusetts’s supreme court were appointed by Republican governors. H. 81/S. 1070 and S. 19 received a hearing in the Massachusetts Joint Committee on the Judiciary but were voted down in committee.
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 (S.B. 277), Illinois (H.B. 784, H.B. 3353), North Carolina (H.B. 194), South Carolina (H. 3039/S. 32/S. 155 and H. 3287), Texas (H.B. 1587/H.B. 1911, H.B. 2900, S.B. 2224), and West Virginia (H.B. 3000) 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. S.B. 277 failed to move before the end of Georgia’s legislative session. H.B. 784 and H.B. 3353 both received hearings in the Illinois House Judiciary Committee but were voted down in committee. H.B. 194 passed the North Carolina House. H. 3039/S. 32/S. 155 and H. 3287 failed to move before the end of South Carolina’s legislative session. H.B. 1911 was approved by the Texas House Committee on Homeland Security & Public Safety. H.B. 2900 received a hearing in the Texas House Committee on Homeland Security & Public Safety but was left pending in committee. H.B. 3000 failed to move before the end of West Virginia’s legislative session.