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Legislative Assaults on State Courts — 2022

State lawmakers across the country are considering bills that would make state courts more political or limit their ability to serve as an independent check on the governor or state legislatures.

The Supreme Court room at the Oklahoma State Capitol
The Supreme Court room at the Oklahoma State Capitol. Credit: Sydney Faith Woodward/Getty

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.

End Notes

Limits to the Enforcement of Court Rulings

Propos­als in 16 states would either enable the over­ride of court decisions or prohibit state offi­cials, includ­ing judges, from enfor­cing partic­u­lar laws or court decisions, espe­cially those related to abor­tion or guns. In all, there were 16 abor­tion-related bills intro­duced across 11 states — two of which were enacted in one state.

Bills Limit­ing the Enforce­ment of Laws or Court Decisions Related to Abor­tion

  • Bills in Alabama (H.B. 295), Arkan­sas (H.B. 1118), Missouri (H.B. 1987), and Oklahoma (H.B. 4327S.B. 1503) would enact abor­tion bans with bounty hunter enforce­ment schemes like Texas’s S.B. 8 and prohibit courts in those states from consid­er­ing claims seek­ing to stop enforce­ment of those laws. H.B. 4327 and S.B. 1503 were signed into law by Oklaho­ma’s governor. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • In Alaska, a bill (H.B. 206) would have banned abor­tion and prohib­ited state or muni­cipal agen­cies from imple­ment­ing “a federal court order that is applied to . . . infringe on a person’s right to life” under the Fifth and Four­teenth Amend­ments of the U.S. Consti­tu­tion. H.B. 206 is a carry­over bill that failed to move before the end of last year’s legis­lat­ive session. It was sched­uled for hear­ing in the state house days after the Supreme Court’s draft decision over­turn­ing Roe v. Wade was leaked but again failed to move before the end of the legis­lat­ive session.
  • Bills with similar language in Color­ado (H.B. 22–1047), Kansas (H.B. 2746), Mary­land (S.B. 504), and Missouri (S.B. 699) would have crim­in­al­ized abor­tion and deemed any contrary state or federal court decisions as “void” and unen­force­able. Similar bills were intro­duced in ArizonaMissouri, and Texas last year. S.B. 504 received a hear­ing in the Mary­land Senate but failed to other­wise move before the end of the legis­lat­ive session. S.B. 699 received a hear­ing in the Missouri Senate but failed to other­wise move before the end of the legis­lat­ive session. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • A similar bill in Indi­ana (H.B. 1282) would have banned abor­tion and deemed any contrary court decision as “nonau­thor­it­at­ive, void, and of no force.” It would have also subjec­ted federal offi­cials attempt­ing to enforce such decisions to arrest by Indi­ana law enforce­ment. Similar bills have been intro­duced in Indi­ana and Missouri in recent years. H.B. 1282 failed to move before the end of the legis­lat­ive session.
  • A bill in Idaho (H. 460) would have crim­in­al­ized abor­tion and required all polit­ical subdi­vi­sions of the state, includ­ing courts, to enforce the law regard­less of “any contrary or conflict­ing federal stat­utes, regu­la­tions, exec­ut­ive orders, or court decisions.” Similar bills were intro­duced last year in IdahoOklahoma, and Texas. H. 460 failed to move before the end of the legis­lat­ive session.
  • Bills with similar language in Color­ado (H.B. 22–1079), Louisi­ana (H.B. 813), and Oklahoma (S.B. 1372) would have required all polit­ical subdi­vi­sions of those states to enforce prohib­i­tions and other restric­tions on abor­tion without regard to Roe or any other “contrary or conflict­ing federal stat­ute, regu­la­tion, treaty, exec­ut­ive order or court ruling” and subjec­ted any judge in those states who “purport[ed] to enjoin, stay, over­rule, or void” any provi­sion of those laws to impeach­ment or removal. A similar bill was intro­duced in South Caro­lina last year. H.B. 813 was voted out of commit­tee but was later voted down in the Louisi­ana House. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • In Louisi­ana, another bill (H.B. 344), which shares the same spon­sor as H.B. 813, would have required all polit­ical subdi­vi­sions of the state to enforce prohib­i­tions against abor­tion without regard to Roe and prohib­ited state agen­cies or offi­cials from comply­ing with contrary court orders. Similar bills were intro­duced in Arizona and Texas last year. H.B. 344 was sched­uled for hear­ing in the state house, but the bill’s spon­sor resigned from the commit­tee after his other anti-abor­tion bill (H.B. 813) was voted down on the house floor.

Bills Limit­ing the Enforce­ment of Laws or Court Decisions Related to Guns

  • Bills with nearly identical language in Alabama (H.B. 13/H.B. 14), Louisi­ana (H.B. 43), and West Virginia (H.B. 2159) would have deemed all or certain federal acts, includ­ing court orders, that “infringe on the people’s right to keep and bear arms” as “void” in those states. Similar bills were intro­duced last year in several states includ­ing Flor­idaGeor­giaIowaMinnesotaNorth Caro­lina, and West Virginia. H.B. 43 passed the Louisi­ana House and was voted out of commit­tee in the state senate but failed to other­wise move before the end of the legis­lat­ive session. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • Bills with similar language in Alabama (H.B. 7), Indi­ana (H.B. 1371), Iowa (H.F. 2303S.F. 2002), Missis­sippi(H.B. 253H.B. 254H.B. 1114H.B. 1418S.B. 2395), South Dakota (H.B. 1052), and Wyom­ing (H.B. 133/S.F. 87) would have like­wise deemed all or certain federal acts, such as federal laws or exec­ut­ive orders, that “infringe on the people’s right to keep and bear arms” as “void” or “invalid” and required courts in those states to “protect the rights of law-abid­ing citizens to keep and bear arms.” Similar bills were intro­duced last year in Arkan­sasMissouri, and Ohio. S.F. 2002 was recom­men­ded for passage by a subcom­mit­tee of the Iowa Senate but failed to other­wise move before the end of the legis­lat­ive session. H.B. 1418 passed the Missis­sippi House but failed to other­wise move before the end of the legis­lat­ive session. H.B. 1052 was voted out of commit­tee in the South Dakota House but was voted down on the floor of the state house. The remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • Bills in Oklahoma (S.B. 1199S.B. 1335) would have author­ized county sher­iffs to detain or arrest federal employ­ees who attempt to enforce certain federal acts, includ­ing court orders, that are contrary to the state’s fire­arm pree­mp­tion law. Both bills failed to move before the end of the legis­lat­ive session.
  • In Wyom­ing, a bill (S.F. 102) would have prohib­ited state and local enforce­ment of any federal “act, law, treaty, judi­cial or exec­ut­ive order, rule or regu­la­tion” that “infringes on or impedes the free exer­cise of indi­vidual rights guar­an­teed under the Second Amend­ment to the Consti­tu­tion of the United States.” S.F. 102 was signed into law by the governor with an amend­ment prohib­it­ing state and local enforce­ment of any “uncon­sti­tu­tional [federal] act, law, treaty, exec­ut­ive order, rule or regu­la­tion” that “infringes on or impedes the free exer­cise of indi­vidual rights guar­an­teed under the Second Amend­ment to the Consti­tu­tion of the United States.”
  • In Oklahoma, a bill (S.B. 1330) would have deemed “[a]ny unlaw­ful federal stat­ute, rule, or exec­ut­ive order, federal or state judi­cial order, or judi­cial find­ing” that would tempor­ar­ily restrict access to fire­arms for indi­vidu­als determ­ined by a court to be a threat to them­selves or others as “null, void, unen­force­able, and of no effect” in the state. Similar bills have been intro­duced in Alabama and South Dakota in recent years. S.B. 1330 failed to move before the end of the legis­lat­ive session.

Bills Limit­ing the Enforce­ment of Other Laws or Court Decisions

  • In Iowa, a bill (H.F. 2423) would have allowed the legis­lature to nullify pres­id­en­tial exec­ut­ive orders and federal court decisions by a major­ity vote. H.F. 2423 failed to move before the end of the legis­lat­ive session.
  • Bills in Oklahoma (H.B. 2981H.B. 3247) would have deemed “[a]ny federal stat­ute, rule or exec­ut­ive order, federal or state judi­cial order or judi­cial find­ings that would have the effect of forcing a vaccin­a­tion mandate as a condi­tion of employ­ment against or upon a citizen of Oklahoma, which would infringe upon a citizen’s Consti­tu­tion­ally-protec­ted rights” as “null, void, unen­force­able and of no effect” in the state. Both bills failed to move before the end of the legis­lat­ive session.
  • Another bill in Oklahoma (H.B. 2988) would have deemed “[a]ny federal stat­ute, rule, or exec­ut­ive order, federal or state judi­cial order or judi­cial find­ings that would have the effect of forcing the teach­ing of the 1619 Project” or slavery in Amer­ica as “null, void, unen­force­able and of no effect” in the state. This bill is part of the national trend of bills intro­duced in Repub­lican-controlled states to ban schools from teach­ing the 1619 Project, an initi­at­ive by the New York Times that reframes the history of Amer­ica through the lens of slavery. H.B. 2988 failed to move before the end of the legis­lat­ive session.

Interfering with Judicial Decision-Making

Six states are consid­er­­ing legis­la­­tion that would limit judges’ decision-making powers, limit judges’ control over proced­ural rules, or make it easier to target judges for unpop­u­lar decisions. And in one state, a proposed consti­tu­tional amend­ment, passed by the state legis­lature in 2021 and appear­ing on the Novem­ber 2022 ballot, would take away state courts’ author­ity over impeach­ment proceed­ings.

  • In Kentucky, a bill (H.B. 495) would have prohib­ited the “state govern­ment” from taking any “discrim­in­at­ory action,” such as levy­ing a fine or enter­ing an injunc­tion, against any person or reli­gious organ­iz­a­tion who discrim­in­ated against an indi­vidual on the basis of sexual orient­a­tion or gender iden­tity in the name of reli­gious free­dom. Similar bills were intro­duced in Color­ado and Texas in 2019. H.B. 495 failed to move before the end of the legis­lat­ive session.
  • In Missouri, a bill (H.B. 2360/S.B. 1044) would have prohib­ited state courts from impos­ing or enfor­cing morator­i­ums on evic­tion proceed­ings “unless specific­ally author­ized by the laws of this state.” This bill was intro­duced after circuit courts in Missour­i’s two largest cities issued local evic­tion morator­i­ums in 2020 to protect renters negat­ively affected by the Covid-19 pandemic. S.B. 1004 was voted out of commit­tee in the state senate but failed to other­wise move before the end of the legis­lat­ive session.
  • Another bill in Missouri (H.B. 1608/S.B. 812) would have prohib­ited state courts from rewrit­ing false or mislead­ing ballot language writ­ten by the legis­lature. A similar bill, along with a bill that would have prohib­ited state courts from hear­ing chal­lenges to ballot language writ­ten by the legis­lature, was intro­duced by Repub­lican lawmakers last year after two courts rewrote the ballot language for a legis­lat­ively proposed consti­tu­tional amend­ment to undo voter-approved redis­trict­ing reforms. H.B. 1608 was voted out of two commit­tees in the state house but failed to other­wise move before the end of the legis­lat­ive session. S.B. 812 passed the state senate and was voted out of two commit­tees in the state house but failed to other­wise move before the end of the legis­lat­ive session.
  • In Ohio, the legis­lature voted to put a proposed consti­tu­tional amend­ment (H.J.R. 2/S.J.R. 5) on the ballot this Novem­ber that would elim­in­ate the state consti­tu­tion’s require­ment that the proced­ures for estab­lish­ing the amount and condi­tions of bail be estab­lished by the state’s judi­ciary. It would also require courts to consider “public safety, includ­ing the seri­ous­ness of the offense, and any other factor the general assembly may prescribe” when determ­in­ing the amount of bail. H.J.R. 2 was intro­duced after the Ohio Supreme Court issued a decision this year that held “public safety is not a consid­er­a­tion with respect to the finan­cial condi­tions of bail” and new rules in 2021 to reform bail in the state.
  • A proposed consti­tu­tional amend­ment in Pennsylvania (H.B. 1910) would limit the state supreme court’s rule­mak­ing author­ity and trans­fer that author­ity to the legis­lature. Similar propos­als have been intro­duced in ArizonaArkan­sas, and West Virginia in recent years. H.B. 1910 was voted out of commit­tee in the state house.
  • Another proposed amend­ment in Pennsylvania (H.B. 2207) would replace the state’s commis­sion for draw­ing legis­lat­ive districts with a “citizens’ commis­sion” made up of 11 members, the major­ity of whom would be appoin­ted by legis­lat­ive lead­er­ship. It would also elim­in­ate the author­ity of the state’s supreme court to redraw legis­lat­ive maps in the event the commis­sion failed to agree on new maps. When asked about the proposed amend­ment, the Repub­lican major­ity leader of the state house cited frus­tra­tion with the role of the state’s courts in redis­trict­ing disputes, saying, “Are the people getting their voice heard, or are the courts?” H.B. 2207 was voted out of commit­tee in the state house.
  • In New Hamp­shire, a proposed consti­tu­tional amend­ment (C.A.C.R. 27) would have allowed voters to recall and remove state court judges by peti­tion. A similar bill in New York (S. 6759) would author­ize the recall of state legis­lat­ors and trial court judges. Judi­cial recall provi­sions increase the poten­tial for public retali­ation against judges for unpop­u­lar decisions and have recently been deployed against judges viewed as being too leni­ent in crim­inal cases. C.A.C.R. 27 received a hear­ing but was voted down in the New Hamp­shire House.
  • In West Virginia, voters will decide in Novem­ber whether they should adopt a legis­lat­ively referred consti­tu­tional amend­ment (H.J.R. 2) that would prohibit courts in the state from inter­ven­ing in impeach­ment proceed­ings and exempt any judg­ment issued by the state senate after an impeach­ment trial from judi­cial review. This proposed amend­ment was intro­duced in response to a 2018 decision by the state’s supreme court that stopped the legis­lature’s impeach­ment of three sitting justices for their alleged abuse of state funds because the proceed­ings were consti­tu­tion­ally and proced­ur­ally flawed. H.J.R. 2 was referred to the Novem­ber ballot by the legis­lature last year.

Reduce or Control Court Resources

In one state, a bill would signi­fic­antly reduce judi­cial branch resources in retali­ation for the state high court’s rulings in a redis­trict­ing case.  

  • In Ohio, where an impasse over new maps for state legis­lat­ive districts will require the state to hold two separ­ate primar­ies, a bill (H.B. 620) would cut the state supreme court’s budget by whatever it costs to hold the separ­ate primary. H.B. 620 was intro­duced by a Repub­lican lawmaker after the court ordered the state’s Repub­lican-controlled redis­trict­ing commis­sion to submit a fourth set of legis­lat­ive maps because its three previ­ous iter­a­tions viol­ated the state consti­tu­tion’s partisan fair­ness provi­sions. The court’s rulings related to the state’s new maps have also promp­ted calls from state Repub­lic­ans for the court’s Repub­lican chief justice to be impeached.

Judge-Shopping for Partisan Advantage

In one state, a bill would alter meth­ods for assign­ing cases in an appar­ent effort to obtain a more favor­able venue for chal­lenges to the redis­trict­ing process.

  • In Alabama, a bill (S.B. 190) would have required lawsuits chal­len­ging the consti­tu­tion­al­ity of statewide redis­trict­ing plans to be heard by a three-judge panel made up of sitting or retired state court judges or justices chosen by the state’s chief justice. Currently, such lawsuits must be filed in the Circuit Court of Mont­gomery County, home to the state’s capital, and the major­ity of judges on that court are Demo­crats. S.B. 190 passed the state senate with an amend­ment requir­ing the three-judge panel to be made up of the judge before whom the case was filed and two circuit court judges from the geographic juris­dic­tions of the North­ern District of Alabama and the South­ern District of Alabama. The bill was voted out of commit­tee in the state house but failed to other­wise move before the end of the legis­lat­ive session.

Gerrymandering or Creating New Courts

In one state, a legis­lat­ively referred state stat­ute, passed by the state legis­lature in 2021 and currently subject to litig­a­tion, would gerry­­­mander the state’s supreme court in response to the percep­­tion that the current court is insuf­fi­­ciently support­ive of outcomes favored by the legis­lature.

  • In Montana, voters may decide in Novem­ber whether they should adopt a legis­lat­ively referred state stat­ute (H.B. 325) that would require the state’s supreme court justices, who currently run in statewide elec­tions, to run in districts. While district-based judi­cial elec­tions aren’t always bad policy, they can open the door to judi­cial gerry­man­der­ing and other types of polit­ical games­man­ship. H.B. 325 was referred to the Novem­ber ballot by the legis­lature last year. It was intro­duced by a Repub­lican lawmaker with ties to a conser­vat­ive group that has spent heav­ily in recent state supreme court elec­tions. It 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). Earlier this year, H.B. 325 was blocked by a state trial court judge from going on the ballot in Novem­ber, but the state has since filed an appeal of that decision to Montana’s supreme court.

Changes to Judicial Selection

Eight 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 use 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 considered in 2022 would either weaken states’ nomin­at­ing commis­sions by giving the governor more control over them 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 (H.B. 339) would have, among other things, subjec­ted court of appeals judges and district judges to approval or rejec­tion by a major­ity of the legis­lature two years after the judge’s appoint­ment and then again every two years. Currently, after a court of appeals judge or district judge has served for at least three years, the judge stands unop­posed in an up-or-down reten­tion vote at the state’s next general elec­tion, and if retained, serves an eight-year term in the case of a court of appeals judge or a six-year term in the case of a district judge. H.B. 339 would have also required the governor’s judi­cial nomin­ees, who are currently vetted by the state’s judi­cial coun­cil, to be confirmed by a major­ity of the members of the legis­lature in joint session. Over the years, Alaska’s supreme court has faced contin­ued attacks from conser­vat­ive offi­cials because of decisions related to abor­tion, ranging from legis­la­tion to weaken or elim­in­ate the state’s judi­cial coun­cil to an attempt by the governor to veto $335,000 from the court’s budget. H.B. 339 failed to move before the end of the legis­lat­ive session.
  • In Idaho, Repub­lican legis­lat­ors intro­duced three bills that would have given the state’s Repub­lican governor more control over the state’s seven-member judi­cial coun­cil, which vets and recom­mends nomin­ees to the governor for vacan­cies on the state’s trial and appel­late courts. Currently, Idaho’s judi­cial coun­cil is made up of the state’s chief justice, who serves as the chair­man, a district court judge and two lawyers appoin­ted by the state bar with the consent of the state senate, and three nonlaw­yers appoin­ted by the governor with the consent of the state senate. The first bill (H. 600) and second bill (S. 1382) would have, among other things, required the coun­cil’s attor­ney members to be appoin­ted by the governor from a list of candid­ates recom­men­ded by the state bar and allowed the governor to reject a slate of the coun­cil’s nomin­ees for a judi­cial vacancy and ask for another list. The third bill (H. 782) would have expan­ded the coun­cil to 11 members and increased the number of members chosen by the governor. It would have also allowed the governor to reject a slate of the coun­cil’s nomin­ees and request an entirely new list for a judi­cial vacancy. These bills were reportedly intro­duced because some Repub­lican legis­lat­ors were unhappy with recent court decisions, includ­ing an Idaho Supreme Court ruling last year that blocked a new law that would have made it harder to put initi­at­ives on the ballot. H. 782 was vetoed by the governor, and the remain­ing bills all failed to move before the end of the legis­lat­ive session.
  • In Indi­ana, a proposed consti­tu­tional amend­ment (S.J.R. 15) would have given partisan legis­lat­ors more influ­ence over the seven-member 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. 15 failed to move before the end of the legis­lat­ive session.
  • In Iowa, the Repub­lican-controlled legis­lature passed a bill (H.S.B. 636/H.F. 2481) allow­ing the governor to pick district asso­ci­ate judges, asso­ci­ate juven­ile judges, and asso­ci­ate probate judges. Previ­ously, those judges were appoin­ted by district judges from nomin­ees put forward by each of the state’s 99 counties’ magis­trate appoint­ing commis­sions. The bill also requires the state’s statewide appel­late court commis­sion to put forth five nomin­ees, as opposed to three, for vacant court of appeals posi­tions. H.F. 2481 was signed into law by the state’s Repub­lican governor with an amend­ment allow­ing judges in contigu­ous counties to be considered for a judi­cial open­ing so long as they move into the new district if chosen.
  • Another bill in Iowa (S.F. 2014/S.F. 2132) would increase the number of nonlaw­yers appoin­ted by the governor to each of the state’s 11-member district judi­cial nomin­at­ing commis­sions from five to six. It would also remove the district’s most senior judge, who serves as the elev­enth member and chair­per­son, from the commis­sion. In 2019, Iowa’s Repub­lican-controlled legis­lature passed a bill giving the state’s Repub­lican governor author­ity to appoint a major­ity of the members on the state’s statewide appel­late court commis­sion. S.F. 2132 passed the state senate but failed to other­wise move before the end of the legis­lat­ive session.
  • In Mary­land, a proposed consti­tu­tional amend­ment (S.B. 24) would have given the state senate the power to reject the governor’s appoint­ment for chief judge of the Mary­land Court of Appeals, the state’s highest court. Currently, six of the seven judges on the high court were appoin­ted by the state’s Repub­lican governor, and while senate approval is required for all seven judges, an addi­tional vote is not required for the governor to elev­ate a sitting judge on the court to chief judge. S.B. 24 was with­drawn by the bill’s Demo­cratic spon­sor.
  • A proposed consti­tu­tional amend­ment in Missouri (S.J.R. 30) would have removed all state bar–ap­poin­ted members on the state’s nomin­at­ing commis­sions, repla­cing them with nonlaw­yer members appoin­ted by the governor. Repub­lic­ans currently hold a two-thirds super­ma­jor­ity in the legis­lature and have accused the state’s supreme court of going “rogue.” S.J.R. 30 received a hear­ing in the Missouri House but failed to other­wise move before the end of the legis­lat­ive session.
  • In Kansas, a proposed consti­tu­tional amend­ment (S.C.R. 1621) would have given the governor the power to directly fill state supreme court vacan­cies, subject to the state senate’s advice and consent, without vetting by the state’s supreme court nomin­at­ing commis­sion. Another proposed amend­ment (S.C.R. 1622) would have replaced the state’s judi­cial nomin­at­ing commis­sion for state supreme court justices with partisan elec­tions. Repub­lican legis­lat­ors have considered similar propos­als in the past, and this year’s propos­als were intro­duced as the Kansas Supreme Court was expec­ted to hear lawsuits chal­len­ging the legal­ity of the state’s new Repub­lican-drawn congres­sional maps. (A major­ity of the court ulti­mately held the new map does not viol­ate the state’s consti­tu­tion.) S.C.R. 1621 was voted out of two commit­tees in the state senate but was voted down on the floor. S.C.R. 1622 was voted out of commit­tee in the state senate but failed to other­wise move before the end of the legis­lat­ive session.
  • In Mary­land, a bill (H.B. 306) would have replaced the state’s judi­cial nomin­at­ing commis­sion for circuit court judges with nonpar­tisan elec­tions. H.B. 306 received a hear­ing in the Mary­land House but failed to other­wise move before the end of the legis­lat­ive session.
  • In Missouri, a proposed consti­tu­tional amend­ment (H.J.R. 78) would have elim­in­ated the state’s judi­cial nomin­at­ing commis­sions, giving the governor the power to directly appoint supreme court, court of appeals, and some circuit court judges, subject to confirm­a­tion by two-thirds vote of the state senate. H.J.R. 78 failed to move before the end of the legis­lat­ive session.
  • In Oklahoma, a proposed consti­tu­tional amend­ment (S.J.R. 28) would have abol­ished the state’s judi­cial nomin­at­ing commis­sion, giving the governor the power to directly appoint state supreme court justices and court of crim­inal appeal judges, subject to confirm­a­tion by the state senate. In recent years, Repub­lican legis­lat­ors have clashed with Oklaho­ma’s supreme court on a range of decisions, from the stay­ing of execu­tions to the strik­ing down of restric­tions on abor­tion. S.J.R. 28 failed to move before the end of the legis­lat­ive session.
  • Another proposed amend­ment in Oklahoma (S.J.R. 43) would have simil­arly abol­ished the state’s judi­cial nomin­at­ing commis­sion, giving the governor the power to directly appoint state supreme court justices, court of crim­inal appeals judges, and court of civil appeal judges, subject to state senate confirm­a­tion. The intent of S.J.R. 43, accord­ing to the senate pres­id­ent, was to “give the governor more appoint­ments to put more anti-abor­tion justices on the state Supreme Court.” S.J.R. 43 passed both cham­bers of the legis­lature and was substi­tuted in a confer­ence commit­tee with a proposed consti­tu­tional amend­ment that would have replaced the state’s nomin­at­ing commis­sion with an 18-member commis­sion made up of the senate pres­id­ent, the house speaker, seven state senat­ors, and nine state repres­ent­at­ives. The substi­tute version of S.J.R. 43 did not have enough votes to advance out of confer­ence commit­tee.
  • In Oklahoma, a bill (S.B. 1832) would have required sitting appel­late and district court judges stand­ing for reten­tion elec­tions to appear on the ballot with party labels, the name of the governor who appoin­ted them, and the date of their appoint­ment, if applic­able. Currently, reten­tion elec­tions are nonpar­tisan. Four of the nine sitting justices on the state’s highest civil court were appoin­ted by a Demo­cratic governor, and one of the four sitting judges on the state’s highest crim­inal court was appoin­ted by a Demo­cratic governor. Repub­lican legis­lat­ors intro­duced a similar proposal in 2018. S.B. 1832 failed to move before the end of the legis­lat­ive session.

Altering Judicial Term Lengths and Limits

One state, New Jersey, is consid­er­ing propos­als that would alter judi­cial term lengths in ways that would make state supreme court justices more depend­ent on the legis­lature or voters for their job secur­ity. Currently, justices are appoin­ted by the governor for an initial term of seven years with the state senate’s advice and consent and may be reappoin­ted for tenure (i.e., a term last­ing until the justice reaches the state’s mandat­ory retire­ment age of 70) via the same process.

  • In New Jersey, a proposed consti­tu­tional amend­ment (A.C.R. 55) would reduce the initial term of appoin­ted justices from seven to five years and also require the governor’s reappoint­ments for tenure to be approved by voters (in addi­tion to the state senate). A similar proposal was intro­duced in 2020.
  • Another proposed amend­ment in New Jersey (S.C.R. 101) would reduce the initial terms of appoin­ted justices from seven to four years and abol­ish tenure. Under the amend­ment, any justice wish­ing to serve until the state’s mandat­ory retire­ment age, includ­ing current justices on the court who have attained tenure, would be required to stand in a reten­tion elec­tion every four years. The spon­sor’s state­ment for S.C.R. 101 refers to New Jersey’s supreme court as having a “decades-old repu­ta­tion for being a very activ­ist court” and notes the court’s decisions on educa­tion policy and afford­able hous­ing as examples of such judi­cial activ­ism. A similar proposal was intro­duced in 2020.

Allowing Firearms in Court

Courts contin­ued to be pulled into broader efforts to empower gun owners to carry fire­arms in public spaces.

  • Bills in Alabama (S.B. 12), Geor­gia (S.B. 277), Kentucky (H.B. 689), Missis­sippi (H.B. 597), South Caro­lina (H. 4968), Virginia (S.B. 61), and West Virginia (H.B. 3000) would have required courts to allow attor­neys, prosec­utors, judges, retired judges, or others to carry a fire­arm or other weapons like stun guns into a court­house even if that court had a rule prohib­it­ing weapons. S.B. 277 passed the Geor­gia Senate but failed to other­wise move before the end of the legis­lat­ive session. S.B. 61 was voted down by a commit­tee of the Virginia Senate. The remain­ing bills all failed to move before the end of the legis­lat­ive session.