Skip Navigation

Suggested Results

    See All Search Results
    Resource

    Legislative Assaults on State Courts — December 2021 Update

    State lawmakers nationwide considered over 150 bills in 2021 that would diminish the role or independence of state courts, particularly in cases about elections, abortion, and gun control.

    Published: December 14, 2021
    View of an empty courthouse in the United States
    ftwitty/Getty

    Courts play a unique role in our democracy — a role that requires them to be independent of the two political branches of government and to sometimes make politically unpopular decisions. However, among state courts — where 95 percent of all cases are filed footnote1_zzs8c8w 1 Alicia Bannon, Rethinking Judicial Selection in State Courts, Brennan Center for Justice, 2016, 1, https://www.brennancenter.org/our-work/research-reports/rethinking-judicial-selection-state-courts. — 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.

    But the attacks on state courts in previous years paled in comparison to what state courts faced in 2021. In all, a Brennan Center review of bills considered in state legislatures between January 1 and December 10 of this year shows that legislators in at least 35 states introduced at least 153 bills that would have politicized or undermined the independence of state courts.*

    At least 19 of these bills have been enacted across 14 states (Arizona, Arkansas, Georgia, Illinois, Indiana, Kansas, Kentucky, Missouri, Montana, North Dakota, Ohio, Oklahoma, Tennessee, and Texas), footnote2_9qbuq4f 2 AZ H.B. 2111, AR H.B. 1957, GA S.B. 202, IL S.B. 642, IN H.B. 1453, KS H.B. 2332, KY H.B. 574, KY H.B. 3, MO H.B. 85, MT H.B. 380, MT S.B. 140, MT H.B. 258, MT S.B. 402, ND H.B. 1164, OH S.B. 80, OK S.B. 631, TN H.B. 1130, TX S.B. 1 (2nd Special Session), TX H.B. 2622. and an additional 55 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 emerged in 2021. First, at least 9 states enacted 12 bills that target state courts for the role they played — or will play — in future election cases. Four of these enacted bills, which are part of the broader trend of legislative proposals taking aim at free and fair elections, will make it harder for judges to extend polling hours to accommodate voters (Georgia) or prohibit judges from altering or suspending state election laws (Kansas, Kentucky, and Texas). footnote3_9u3tr9n 3 GA S.B. 202, KS H.B. 2332, KY H.B. 574, TX S.B. 1 (2nd Special Session).  The remaining eight bills that were enacted will impact election cases (and other types of litigation) by changing how judges get selected, which courts hear cases involving the state, or by making it easier for judges to be targeted for unpopular decisions. These laws were enacted across six states (Illinois, Indiana, Kentucky, Montana, Ohio, and Tennessee). footnote4_x6q7e8e 4 IL S.B. 642, IN H.B. 1453, KY H.B. 3, MT H.B. 380, MT S.B. 402, MT S.B. 140, OH S.B. 80, TN H.B. 1130.

    Legislators also sought to limit courts’ ability to strike down abortion restrictions. Famously, Texas’s strict anti-abortion law S.B. 8 attempted to evade judicial review by outsourcing enforcement of the law to private citizens. But at least 10 states, including Texas, also considered 14 bills that would have forbidden state courts from enforcing Roe v. Wade. In South Carolina, one bill would have even allowed judges to be impeached or arrested if they blocked the state’s restrictions on abortion. (None of these bills became law, though a bill in Maryland received a hearing and a bill in Missouri was voted out committee). footnote5_6r3y3ht 5 MD H.B. 997, MO S.B. 391.

    Legislators took a similar approach to limit the ability of state courts to enforce gun control laws. At least 22 states considered 35 bills this year that would have prohibited state officials, including judges, from enforcing federal laws or presidential executive orders that regulated guns. Six such bills, which are part of the so-called “Second Amendment sanctuary” movement, were enacted across six states (Arizona, Arkansas, Missouri, Montana, Oklahoma, and Texas). footnote6_5d12ye2 6 AZ H.B. 2111, AR H.B. 1957, MO H.B. 85, MT H.B. 258, OK S.B. 631, TX H.B. 2622.

    With the rightward shift on the U.S. Supreme Court and many federal courts of appeals, state courts are likely to attract more attention as people increasingly turn to state law and state constitutions for protection — which will in turn encourage further efforts to manipulate or retaliate against state courts in the coming years. The time to recognize and protect against the threats facing these courts is now.

    In 2021, legislators in at least 35 states considered at least 153 bills targeting state courts, 19 of which have become law in 14 states.

    • 65 bills in 28 states would have either enabled the override of court decisions or prohibited state officials, including judges, from enforcing particular laws or court decisions, especially those related to abortion or guns. 7 such bills were enacted.
    • 37 bills in 16 states would have put pressure or restrictions on judicial decision-making, targeted individual judges for unpopular rulings, or taken away courts’ authority to manage their own rules or resources. 5 such bills were enacted.
    • Seven bills in six states would have either gerrymandered existing courts or created new courts, in an effort to maintain a partisan advantage or obtain more favorable outcomes. Two such bills were enacted.
    • Three bills in two states would have changed the judges or courts that hear high-profile cases against the government. One such bill was enacted.
    • 28 bills in 13 states would have injected more politics into how judges are selected. 4 such bills were enacted.
    • Three bills in two states would have subjected judges to more frequent political pressures by shortening term lengths. No such bills were enacted.
    • 10 bills in 6 states would have allowed more guns in courthouses, even if courts themselves wanted to prohibit guns. No such bills were enacted.

    The following is an overview of bills introduced at the state level in 2021, broken down by how they might have weakened the independence or power of the judiciary.

    Table of Contents

    *These bills were identified by the Brennan Center through CQ FiscalNote and CQ StateTrack (provided by the Piper Fund), as well as media reports. This updated analysis includes bills that were not included in our May 2021 analysis because they were not identified until after a change in our search inquiries. Also, 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

    Sixteen states considered legislation that would have limited judges’ decision-making powers, made it easier to target judges for unpopular decisions, limited judges’ control over procedural rules, or sought to remove individual judges for their rulings. In a new trend in 2021, many of these bills specifically targeted 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, would have prohibited 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 have prohibited any state governmental entity, including 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 was signed into law by the state’s Republican governor, but with a narrowly passed amendment removing the limitation on judicial review.
    • 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, S.B. 307) would have prohibited courts from changing the deadline for returning advance voting ballots. H.B. 2319 and S.B. 307 both received hearings 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.
    • In Pennsylvania, a similar bill (H.B. 1502) would have provided that “[n]o declared disaster emergency, executive order or court order” may waive the deadline for returning completed absentee ballots. H.B. 1502 was introduced by a Republican lawmaker after the Pennsylvania Supreme Court issued a decision extending the deadline for voters to return their completed absentee ballots for the 2020 presidential election because of the pandemic — a decision state Republicans criticized as the product of an “activist court” that was “allowing one party to steal this election.” H.B. 1502 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 Nevada, a proposed constitutional amendment (A.J.R. 13) would have stripped the responsibility of canvassing and certifying election results for Congressional offices, district and state officers, and ballot initiatives from the state supreme court and transferred that authority to the state legislature. One of A.J.R. 13’s primary sponsors was a signatory to a sign-on letter from state legislators to “the citizens of the United States of America” that called for a 50-state audit of the 2020 presidential election based on unsubstantiated claims of voter fraud. A.J.R. 13 failed to move before the end of the legislative session.
    • In Texas, several bills would have prohibited courts in the state from modifying or suspending election-related deadlines or procedures, changed the judges that hear election-related disputes, or created a new “state elections tribunal” to hear certain election-related cases, one of which became law. One bill (H.B. 3, S.B. 1) 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. A similar bill (H.B. 102) would have also prohibited election officials or political subdivisions of the state, including courts, from creating, suspending, or altering “any voting standard, practice, or procedure in a manner not otherwise expressly authorized” by the state’s election law. Another bill (S.B. 25) would have likewise provided that “[e]xcept as specifically permitted by statute, the qualifications and procedures for early voting by mail or voting by mail may not be amended or suspended for any reason.” A fourth bill (S.B. 1215) would have required the secretary of state to create a “state elections tribunal” to hear certain election administration disputes. A fifth bill (S.B. 1110) would have required certain election-related disputes to be heard by retired judges chosen by a region’s presiding judge, who is appointed by the state’s Republican governor, rather than district or county court judges. A sixth bill (S.B. 1589) would have prohibited 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.” S.B.1 was signed into law by the state’s Republican governor. S.B. 1589 passed the state senate, but otherwise failed to move before the end of the legislative session. The remaining bills all failed to move before the end of the legislative session.
    • 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. H.R. 3 failed to move before the end of the legislative session.
    • 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.

    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. All three proposals failed to move before the end of the legislative session.
    • A bill in Iowa (H.F. 173) would have prohibited 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. H.F. 173 failed to move before the end of the legislative session.
    • 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. The Iowa 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.
    • 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 voted out of committee in the state senate but otherwise failed to move before the end of the legislative session.
    • A bill in Montana (S.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. 4446/S. 4541) would have divided 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 have required 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 have also removed 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. 4446/S. 4541 failed to move before the end of the legislative session.
    • 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 was signed into law by the state’s Republican governor, but with an amendment removing the provision that provided for an automatic stay.
    • 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 have added “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. H.B. 207 failed to move before the end of the legislative session.
    • 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. Both proposals 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 and S.B. 252 were voted out of committee but otherwise failed to move before the end of the legislative session. S.B. 318 passed the state senate but was voted down in the state house on second reading. S.B. 366 received a hearing in the state senate but was tabled in committee.

    Gerrymandering or Creating New Courts

    Proposals in six states would have either gerrymandered existing courts or created new ones, in an effort to maintain a partisan advantage or 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 Illinois, the Democratic-controlled legislature passed a bill (S.B. 642) redrawing the districts for the Illinois Supreme Court. Illinois Democrats redrew the court’s districts for the first time in 57 years after a Democratic justice lost his retention election last November. According to an analysis by the Center for Illinois Politics, the newly redrawn districts create three solidly Democratic districts and a fourth that has voted for Democrats in each recent statewide election (though by varying margins). S.B. 642 was signed into law by the state’s Democratic governor.
    • 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 voted out of committee in the Pennsylvania House but otherwise failed to advance in time to make it on the ballot in 2021. If passed by the legislature again in 2022, the amendment will go on the ballot.
    • 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 voted out of committee in the state senate, 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 but otherwise failed to move before the end of the legislative session.
    • 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 three-judge “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 was signed into law by the state’s Republican governor.

    Judge-Shopping for Partisan Advantage

    In two states, bills would have changed courts’ jurisdiction or altered 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 enacted 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 28 states would have either enabled the override of court decisions or prohibited state officials, including judges, from enforcing particular laws or court decisions, especially those related to abortion or guns.

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

    • In Alaska, a bill (H.B. 206) would have prohibited state or municipal agencies from using or authorizing the use of “an asset to implement or aid in the implementation of a requirement of 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 failed to move before the end of the legislative session.
    • Bills in Arizona (H.B. 2650), Missouri (S.B. 391), and Texas (H.B. 3326) would have criminalized abortion and deemed any federal actions, including court decisions, that purported to supersede, stay, or overrule those laws as void. S.B. 391 was voted out of a committee in the Missouri Senate but otherwise failed to move before the end of the legislative session. H.B. 2650 and H.B. 3326 failed to move before the end of the legislative session.
    • 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 the legislative session.
    • In Missouri, another bill (S.B. 443) would have likewise criminalized abortion and required state courts to “affirmatively enforce” the state’s due process clause, which specifies that no person must be deprived of life, liberty, or property without due process of law. S.B. 443 failed to move before the end of the legislative session.
    • Bills in Arizona (H.B. 2877) and Texas (H.B. 3641/S.B. 1671) would have declared and treated the U.S. Supreme Court’s decision in Roe v. Wade as “void” and required all political divisions of those states, including courts, to enforce prohibitions and other restrictions on abortion without regard to Roe. Both bills failed to move before the end of the legislative session.
    • A similar bill in South Carolina (H. 4046) would have also declared and treated Roe as void and subjected any judge in the state who “purports to enjoin, stay, overrule, or void any provision” of the law to impeachment or removal from office. H. 4046 failed to move before the end of the legislative session.
    • Bills in Idaho (H.B. 56), Oklahoma (S.B. 495), and Texas (H.B. 23) would have banned abortion and required those states’ attorney generals to enforce the ban regardless of any “contrary or conflicting federal statutes, regulations, executive orders, or court decisions.” All three bills failed to move before the end of the legislative session.
    • In Colorado, a bill (H.B. 21–1017) would have deemed any federal act, law, treaty, order, or regulation that “denies or prohibits protection of a human person’s inalienable right to life” as “null, void, and unenforceable” in the state. H.B. 21–1017 failed to move before the end of the legislative session.
    • A similar bill in Maryland (H.B. 997) would have provided that “[a]bortion is not the supreme law of the land and consequently is not valid therefore, any law, statute, or court opinion permitting abortion, is contrary to the supreme law of the land and consequently invalid.” H.B. 997 received a hearing in the Maryland House but otherwise failed to move before the end of the legislative session.

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

    • Bills in Alabama (H.B. 373) and South Dakota (H.B. 1075) would have deemed void any federal or state laws, court decisions, and/or executive orders implementing or enforcing federal red flag laws or extreme risk protection orders that temporarily restrict access to firearms for individuals determined by a court to be a threat to themselves or others. H.B. 373 failed to move before the end of Alabama’s legislative session. H.B. 1075 passed the South Dakota House but otherwise failed to move before the end of the legislative session.
    • Bills in Arizona (H.B. 2111), New Hampshire (S.B. 154), and Texas (H.B. 2622, 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. Another bill in Montana (H.B. 258) would prohibit employees of the state or a political subdivision of the state from “enforcing, assisting in the enforcement of, or otherwise cooperating” with the enforcement of certain federal restrictions on firearms, ammunition, and magazines. H.B. 2111 was signed into law by Arizona’s governor. S.B. 154 passed both chambers of the General Court of New Hampshire but was tabled in conference committee. H.B. 2622 was signed into law by Texas’s governor. S.B. 513 passed the Texas Senate but otherwise failed to move before the end of the legislative session. H.B. 258 was signed into law by Montana’s governor.
    • 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 prohibit only the enforcement of federal restrictions on firearms enacted after January 1, 2021, into law. H.B. 85 was signed into law by Missouri’s governor with an exception that allows state officials to provide “material aid” for the federal prosecution of certain crimes.
    • Bills in Oklahoma (H.B. 1629, S.B. 18, S.B. 486) would have prohibited law enforcement officers in the state from obeying or enforcing “any direct or indirect order” that violates the right to bear arms of “law-abiding citizens” under the state and federal constitutions. Another bill (S.B. 631) would have prohibited state agencies or political subdivisions from “accepting any grants or funding to implement any statute, rule or executive order, judicial order or judicial findings” that would have had the “effect of reduction, repression, diminution or subversion of the right to keep and bear arms against or upon a citizen of this state.” S.B. 631 was signed into law by the state’s governor with an amendment prohibiting law enforcement officers in the state from obeying or enforcing, among other things, any federal, state, or local court orders ordering the confiscation of firearms, firearm accessories, or ammunition from “law-abiding citizens” of the state. H.B. 1629 passed the state house but otherwise failed to move before the end of the legislative session. The remaining bills all failed to move before the end of the legislative session.
    • Bills with nearly identical language in Alabama (H.B. 349/S.B. 157/S.B. 358, S.B. 253/H.B. 400), Arizona (S.B. 1328), Florida (H.B. 1205), Georgia (H.B. 597), Iowa (H.F. 518), Kentucky (H.B. 361/H.B. 445, S.B. 254), Louisiana (H.B. 118), Minnesota (H.F. 1265), Missouri (H.B. 310, S.B. 39), Ohio (H.B. 62), North Carolina (H.B. 189), South Carolina (H. 3012, S. 369), Tennessee (H.B. 928/S.B. 1335), West Virginia (H.B. 2159/H.B. 2537), and Wyoming (H.B. 124/S.F. 81) would deem all federal acts, including court orders, whether past, present, or future that “infringe on the people’s right to keep and bear arms” as “null, void, and of no effect” or “invalid and of no effect” in those states. Another bill in Virginia (H.B. 1689) would have deemed state actions, including court orders, that “unlawfully infringed on the right of the people to keep and bear arms” as “void and unenforceable” in the state. Similar bills were introduced in Mississippi and Oklahoma last year. S.B. 1335 was signed into law by Tennessee’s governor, but with an amendment providing that only federal actions found to be unconstitutional by the U.S. Supreme Court or Tennessee Supreme Court are deemed as “null, void, and unenforceable” in the state. S.B. 358, S.B. 1328, H.B. 118, and S.F. 81 passed one chamber of those states’ legislatures but otherwise failed to move before the end of the legislative session. H.B. 310 and S.B. 39 were voted out of committee but otherwise failed to move before the end of Missouri’s legislative session. H.B. 62 received three hearings in the Ohio House but otherwise failed to move before the end of the legislative session. The remaining bills all failed to move before the end of the legislative session.
    • In South Dakota, a bill (S.B. 129) would have required the state’s attorney general to challenge certain federal actions related to guns and prohibited political subdivisions of the state, including courts, from enforcing those federal actions upon the filing of such a lawsuit. S.B. 129 received a hearing in the South Dakota Senate but was later deferred.

    Bills Limiting the Enforcement of Other Laws or Court Decisions

    • In Missouri, a bill (H.B. 1034) would have deemed all federal acts, including court orders, that “infringe on the powers reserved to the states or to the people” under the Tenth Amendment of the U.S. Constitution, whether enacted before or after the bill’s effective date, as invalid and unenforceable in the state. H.B. 1034 received a hearing in the Missouri House but otherwise failed to move before the end of the legislative session.
    • 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. Both bills failed to move before the end of the legislative session.
    • A similar bill in Iowa (H.F. 752) would have provided 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. H.F. 752 failed to move before the end of the legislative session.
    • Bills in Iowa (H.F. 481/H.F. 815, H.F. 577, H.F. 578), Missouri (S.B. 588), North Dakota (H.B. 1164), Oklahoma (H.B. 1236) South Dakota (H.B. 1194), and Tennessee (H.B. 1229/S.B. 1163) would prohibit political subdivisions of the state, including courts, from enforcing certain presidential executive orders — namely, those that relate to a pandemic or natural disaster or the regulation of natural resources, the agriculture industry, the financial sector, or the right to bear arms — that “restricts a person’s rights” or that is determined to be unconstitutional by the state legislature and/or the attorney general. H.B. 1164 was signed into law by North Dakota’s governor with an amendment providing political subdivisions of the state may not implement such an executive order if the attorney general has issued an opinion that the order “unconstitutionally restricts a person’s rights” or the order has been found unconstitutional by a court of competent jurisdiction. H.B. 1236 was signed into law by Oklahoma’s governor, but with an amendment providing, among other things, that political subdivisions of the state “shall not implement, adopt or enforce any order, federal agency rule or federal congressional action” that is declared unconstitutional by a court of competent jurisdiction. H.F. 481/H.F. 815 was recommended for passage by a subcommittee of the Iowa House but otherwise failed to move before the end of the legislative session. H.B. 1194 passed the South Dakota House and was approved by a committee in the South Dakota Senate but was deferred. The remaining bills all failed to move before the end of the legislative session.
    • 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 but later died in committee.
    • Bills with near-identical language in South Dakota (S.B. 122), Texas (H.B. 1215/H.B. 2930), and Wyoming (H.B. 256) would have established joint legislative committees to determine the constitutionality of federal actions, including court decisions. And if the legislature declared an action unconstitutional, state courts would have been prohibited from enforcing that action. Similar bills have been introduced over the years in Idaho and Oklahoma. S.B. 122 received a hearing in the South Dakota Senate but was deferred. The remaining bills all failed to move before the end of the legislative session.

    Changes to Judicial Selection

    Thirteen states considered bills that would have changed 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 2021 would have either weakened states’ judicial nominating commissions by giving the governor or other political actors more control over the commissions or eliminated them altogether. Others would have given political actors more control over judicial selection in other ways or altered the selection process for a perceived partisan advantage.

    • In Alaska, a bill (S.B. 14) would have prohibited 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 have also required a majority of the members of the legislature in a joint session to confirm the governor’s nominees. S.B. 14 was voted out of committee in the state senate but otherwise failed to move before the end of the legislative session.
    • 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 proposed constitutional amendment in Alaska (S.J.R. 2) and a bill in Iowa (S.F. 399) would have required senate confirmation of the state bar-appointed lawyer members of those states’ judicial nominating commissions, 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. Both proposals failed to move before the end of the legislative session.
    • A similar proposed constitutional amendment in Missouri (H.J.R. 46) would have required senate confirmation of the nonlawyer members of the state’s judicial nominating commission chosen by the governor. Another proposed amendment (H.J.R. 24, H.J.R. 43, S.J.R. 14) would have eliminated the state’s judicial nominating commission altogether, 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." H.J.R. 24 and H.J.R. 43 were voted out of 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 the state senate but otherwise failed to move before the end of the legislative session. H.J.R. 46 failed to move before the end of the legislative session.
    • In Alaska, a proposed constitutional amendment (H.J.R. 18) would have eliminated the state’s judicial nominating commission and instead required state supreme court justices to be elected by voters at a general election. H.J.R. 18 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, and 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 have limited 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. None of these proposals move before the end of the legislative session.
    • In North Carolina, a proposed constitutional amendment (H.B. 759) would have required 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. H.B. 759 failed to move before the end of the legislative session.
    • 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 were 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 were also 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 were 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 was signed into law by Ohio’s Republican governor. H.B. 342 and H.B. 355 were both voted out of committee in the Montana House but were voted down on second reading. The remaining bills all failed to move before the end of the legislative session.
    • A proposed constitutional amendment (H.B. 1904/H.B. 2141) in Pennsylvania would require judges, including state supreme court justices, wishing to serve for additional terms to run for re-election in competitive elections, as opposed to standing unopposed in up or down retention elections. H.B. 1904/H.B. 2141 shares the same sponsor as H.B. 38, the proposed constitutional amendment that would gerrymander Pennsylvania’s appellate courts.

    Altering Judicial Term Lengths and Limits

    Proposals in two states would have altered judicial term lengths in ways that would have made 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 have instead provided for an initial term of seven years and required 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 have provided for 10-year terms for appointed judges and required 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 a joint committee but were voted down.
    • In Pennsylvania, a proposed constitutional amendment (H.B. 1880) would limit state supreme court justices to two terms. The amendment would also prohibit sitting justices who have served at least two terms from running for re-election. H.B. 1880 is sponsored by a Republican lawmaker who has been a vocal critic of the Pennsylvania Supreme Court’s decisions related to the 2020 election. He also introduced a resolution last year that sought to impeach a sitting justice over his decisions related to partisan gerrymandering, the governor’s pandemic shutdown orders, and the 2020 election.

    Allowing Firearms in Court

    Courts continued to be pulled into broader efforts to empower gun owners to carry firearms 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 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. H.B. 784 and H.B. 3353 both received hearings in the Illinois House but were voted down in committee. H.B. 194 passed the North Carolina House but otherwise failed to move before the end of the legislative session. H.B. 1911 was voted out of committee in the Texas House but otherwise failed to move before the end of the legislative session. H.B. 2900 received a hearing in the Texas House but was left pending in committee. The remaining bills all failed to move before the end of the legislative session.

    End Notes