In 2022, state lawmakers have continued a disturbing trend of introducing legislation that would undermine the role and independence of state courts. New this year, though, is that legislators are introducing these bills in the shadow of a Supreme Court that is poised to remove or weaken major constitutional rights at an unprecedented scale beginning as soon as this summer. Most significantly, in a leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, a majority of justices appear ready to overrule Roe v. Wade, erasing decades of precedent protecting abortion rights under the federal constitution.
A diminished role for federal courts in protecting abortion rights as well as in other arenas, such as redistricting, is putting state courts front and center in some of the country’s most charged political and legal debates. State courts can, and often do, interpret their state constitutions to go further than the federal constitution in recognizing and protecting rights. State supreme courts set binding precedent for over 23,000 lower court judges and have the final word on interpreting state law and constitutions. It is critical that these judges are able to decide cases before them without inappropriate political manipulation or retaliation.
Yet across the country, state courts and the judges that sit on them have become targets. In Ohio, for example, Republican legislators have threatened to impeach the state’s Republican chief justice for a series of decisions striking down their preferred legislative maps as partisan gerrymanders. And days after the Supreme Court’s draft Dobbs opinion was leaked, legislators in Louisiana sought to pass a bill that would have criminalized abortion and subjected any judge in the state who ruled against the law to impeachment or removal. While that bill ultimately failed, Oklahoma’s governor has signed three abortion bans into law this year — two of which are modeled after Texas’s bounty hunter law S.B. 8 and contain provisions that explicitly prohibit courts in the state from hearing lawsuits to stop the enforcement of those laws. footnote1_gy14sdb 1 OK S.B. 612, OK H.B. 4327, OK S.B. 1503.
A Brennan Center review of bills already considered in 2022 shows that as of June 10, legislators in at least 25 states introduced at least 73 bills that would politicize or undermine the independence of state courts.* Of these bills, at least four have been signed into law in three states (Iowa, Oklahoma, and Wyoming). footnote2_k7o7go7 2 IA H.F. 2481, OK H.B. 4327, OK S.B. 1503, WY S.F. 102. An additional 22 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 November ballot. (Our analysis of legislation that targeted the role or independence of state courts in previous years can be found here.)
In many of this year’s bills, state lawmakers attempt to insulate their actions from review by courts. Some of these bills would prohibit state officials, including judges, from enforcing certain court decisions, while others would prohibit courts from hearing cases challenging the constitutionality of laws passed by the legislature or subject judges who block certain laws to impeachment or removal. And though the legislative sessions of 36 states have come to an end, many states have announced plans to call special sessions should Roe fall. In some states, this could open the door for more bills like Louisiana’s and Oklahoma’s to become law.
In addition to these measures, bills passed last year will be on the ballot this November in West Virginia and potentially Montana. The West Virginia measure would cut loose future impeachment proceedings from judicial review. And the Montana measure, which is currently subject to litigation, would open the door to gerrymandering of the state’s supreme court.
As of June 10, legislators in at least 25 states have considered at least 73 bills targeting state courts.
- Thirty-eight bills in 16 states would either enable the override of court decisions or prohibit state officials, including judges, from enforcing particular laws or court decisions. Three such bills have been enacted so far.
- Nine bills in six states would put pressure or restrictions on judicial decision-making, take away courts’ authority over procedural rules, or reduce judicial branch resources in response to decisions that displeased the legislature. One such bill has been referred to the November ballot.
- One bill in one state would change the judges or courts that hear high-profile cases against the government.
- Sixteen bills in eight states would inject more politics into how judges are selected. One such bill has been enacted so far.
- Two bills in one state would shorten judicial term lengths, subjecting judges to more frequent political pressures.
- Seven bills in seven states would allow more guns in courthouses, even if courts themselves wanted to prohibit weapons.
In addition, two legislatively referred ballot initiatives in two states, passed in 2021 and appearing on the ballot in 2022, would take away courts’ authority over impeachment proceedings or gerrymander existing courts.
The following is an overview of bills introduced at the state level as of June 10, broken down by how they might weaken the independence or power of the judiciary.
*These bills were identified by the Brennan Center through CQ FiscalNote (with support from the Piper Fund) and media reports. One bill was also identified using the National Center for State Courts’ Gavel to Gavel database. Our analysis includes bills introduced in 2022 as well as any bill introduced in 2021 as part of the same legislative session, provided the bill has advanced in some way in 2022. If a bill’s description does not indicate whether the bill has progressed, that is because the relevant legislative session for that bill is still ongoing.