Legislative Assaults on State Courts in 2023

Last November, days after Ohio voters enshrined the right to abortion in the state’s constitution, a group of state legislators said they would not let courts enforce the new provision. Despite the successful ballot measure, they floated a bill that would have stripped Ohio courts of jurisdiction over any case seeking to enforce the new amendment. What’s more, the legislation would have subjected any judge who did so to impeachment proceedings. The legislators ultimately backed down, but the brazen attempt to undermine judicial powers and independence encapsulates the watershed year that 2023 was for state courts — and presages some of the challenges expected in 2024. 

In 2023, state courts were thrust into the center of many of the country’s most polarizing debates. Since the Supreme Court abolished the federal right to abortion, at least 40 state cases have been filed challenging abortion bans in 23 states. Throughout 2023, state high courts issued abortion decisions in Georgia, Idaho, Iowa, Indiana, Kentucky, North Dakota, Oklahoma, and South Carolina, with 22 lawsuits still pending by the end of the year. State courts also issued major decisions on partisan gerrymandering in Alaska, Kentucky, New Hampshire, New Mexico, Nevada, New York, and North Carolina.

But as state courts took on greater importance, politicians redoubled their efforts to assert political power over state judicial branches and ensure judges would not be an obstacle to their policy goals.

For years, lawmakers have attempted to change — sometimes successfully — how judges are selected to get their preferred judges on the bench. Last year was no different: Idaho and Utah passed bills giving the governor control over the composition of the states’ judicial nominating commissions, while Mississippi passed a law that would have singled out voters in majority-Black Jackson by creating new Jackson judges to be appointed by state officials rather than elected by local voters, as judges are in all other parts of the state. footnoteIDS1148MSHB1020UTSB129_2zhgdmq ID S. 1148; MS H.B. 1020; UT S.B. 129 ID S. 1148; MS H.B. 1020; UT S.B. 129  (A portion of the law was struck down by the Mississippi Supreme Court.)

In addition to changing how judges are selected, lawmakers in several states manipulated the rules determining which judges hear certain cases to put a thumb on the scale in favor of the legislature in high-stakes litigation. Texas created a new statewide court of appeals with exclusive appellate jurisdiction over cases brought against the state, aiming to reroute those cases from judges sitting in the state’s capital to a venue seen by the legislature as more favorable. footnoteTXSB1045_bhag7p7 TX S.B. 1045 TX S.B. 1045  Similarly, the North Carolina legislature granted itself the power to appoint 10 new special superior court judges and authorized them to hear constitutional challenges to state law as well as all redistricting cases. footnoteNCHB259_5ol11ib NC H.B. 259 NC H.B. 259  And Kentucky passed a bill, which was ultimately struck down by the Kentucky Supreme Court, that would have allowed parties, including the attorney general, to transfer certain constitutional cases challenging state laws to another venue without a showing of bias or just cause for removal. footnoteKYSB126_x1jfgyd ​KY S.B. 126 ​KY S.B. 126

In a continuing trend, lawmakers also sought to retaliate against judges who threatened their political power. In Wisconsin, the general assembly threatened to impeach Justice Janet Protasiewicz, whose recent election gave liberals their first majority on the high court in 15 years, if she did not recuse herself from redistricting litigation. (The legislature at least temporarily backed down after several former justices spoke out against the effort.) Unsurprisingly, opponents of judicial independence have looked to press their advantage by consolidating power over the bodies that investigate allegations of judicial misconduct, succeeding in Montana and North Carolina. footnoteMTHB326NCHB259_aianz8y MT H.B 326; NC H.B. 259 MT H.B 326; NC H.B. 259

As state courts across the country decided the fate of abortion rights, lawmakers also sought to blunt judges’ powers to strike down abortion bans. In response to a trial court enjoining Utah’s abortion ban, the state enacted a law making it more difficult for plaintiffs to win injunctions and permitting parties to petition courts to reconsider injunctions issued under the previous standard. footnoteUTHJR2_2ojosex UT H.J.R. 2 UT H.J.R. 2  Montana passed a similar law, reportedly to undercut possible litigation concerning Medicaid coverage of abortions. footnoteMTSB191_85xgw1e MT S.B. 191 MT S.B. 191

Throughout 2024, state courts are likely to face similar assaults on their judicial independence, as state judges will be deciding major national cases dealing with issues ranging from abortion rights to climate change and cases related to the 2024 elections. 

A Brennan Center review of bills considered in 2023 shows legislators in 29 states introduced at least 124 bills attacking the independence of courts.* Of these bills, 16 were signed into law in 7 states (Idaho, Kentucky, Mississippi, Montana, North Carolina, Texas, and Utah). footnoteIDH348IDS1148KYSB126MSHB912MSHB1020MTHB326MTSB134MTSB191MTSB252MTSB313MTSB410NCHB259TXSB4TXSB1045UTHJR2UTSB129_4xs98ag ID H. 348; ID S. 1148; KY S.B. 126; MS H.B. 912; MS H.B. 1020; MT H.B. 326; MT S.B. 134; MT S.B. 191; MT S.B. 252; MT S.B. 313; MT S.B. 410; NC H.B. 259; TX S.B. 4; TX S.B. 1045; UT H.J.R. 2; UT S.B. 129 ID H. 348; ID S. 1148; KY S.B. 126; MS H.B. 912; MS H.B. 1020; MT H.B. 326; MT S.B. 134; MT S.B. 191;  MT S.B. 252; MT S.B. 313; MT S.B. 410; NC H.B. 259; TX S.B. 4; TX S.B. 1045; UT H.J.R. 2; UT S.B. 129  An additional 7 bills made significant legislative progress, passing at least one legislative chamber. Our analysis of legislation that targeted the role or independence of state courts in previous years can be found here.

• Twenty-nine bills in seventeen states would inject more politics into how judges are selected. Three bills were enacted.
• Nine bills in four states would politicize judicial discipline. Four bills were enacted, including a bill that was also counted as a judge-shopping measure.
• Three bills in three states would allow legislatures to pick the judges who hear certain cases. Two bills were enacted, including a bill that was also counted as a measure that would politicize judicial discipline.
• Fifty-eight bills in twenty-one states would either enable the override of court decisions or prohibit state officials, including judges, from enforcing particular laws or court decisions. Two bills were enacted.
• Nineteen bills in four states would interfere with judicial decision-making. Three bills were enacted.
• Three bills in three states would have gerrymandered existing courts or created new courts in an effort to obtain a partisan advantage. One bill was enacted.
• Two bills in two states passed that reduce or control court resources to retaliate against the judicial branch for specific rulings.
• One bill would have altered the size of a state supreme court to obtain a partisan advantage. No bill was enacted.

The following is an overview of bills that passed at least one state legislative chamber in 2023, broken down by how they might have weakened 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. Several bills were also identified using the National Center for State Courts’ Gavel to Gavel database. If a bill’s description does not indicate whether the bill has progressed, that is because the relevant legislative session for that bill is ongoing. 

Legislatures in 17 states introduced 29 bills that would inject more politics into how judges are selected. Several legislatures sought to consolidate control over the state’s judicial nominating commission with either the governor or the legislature, while others attempted to implement partisan judicial elections. Three such bills were enacted, and four additional bills passed at least one legislative chamber. 

• An Idaho law (S. 1148) gives the governor the power to appoint a majority of the state’s judicial council, which vets and recommends nominees to the governor for vacancies on the state’s trial and appellate courts. Prior to the bill’s passage, the judicial council was made up of seven members: the state’s chief justice, who served as the chair, a district court judge, 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 bill increased the size of the council by adding a magistrate judge and an additional non-attorney member. It also requires that the district judge and magistrate judge be selected by the governor with the consent of the senate and that the two attorneys previously appointed by the state bar be selected by the governor with the consent of the senate from a list provided by the state bar. As a result, the governor, who previously appointed three of seven members of the council, will now appoint eight of nine members. The bill also authorizes the governor to reject the slate of nominees put forward by the council to fill a vacancy and to request that the council add up to three additional nominees to the slate.
• A Utah law (S.B. 129) gives the governor more control over the state’s appellate, district, and juvenile court nominating commissions, as well as a new judicial nominating commission that puts forward candidates for appointment to Utah’s newly created Business and Chancery Court (H.B. 216). Prior to the passage of the bill, the judicial nominating commissions consisted of two attorneys appointed by the governor from a list recommended by the state bar and five additional members to be appointed by the governor, as well as one nonvoting member appointed by the chief justice. The commissions had partisan balance requirements under which no more than four of the seven commissioners could be members of the same political party. The law eliminates both the state bar’s role in recommending commissioners and the partisan balance requirements. As a result, the governor will appoint all seven voting members without restriction. The law also empowers the governor to remove commissioners “at any time with or without cause.” 
• A Mississippi law (H.B. 1020) created four new special circuit judges for Hinds County, which is majority Black and encompasses Jackson, to be appointed by the chief justice of the Mississippi Supreme Court rather than elected by local voters as judges are in all other parts of the state. It also created a new inferior court with jurisdiction over a development district that administers infrastructure projects for state properties in Jackson and authorized the chief justice to appoint judges to this new court. The bill drew both state and federal lawsuits challenging it as exceeding the legislature’s authority under Mississippi’s constitution and as racially discriminatory under the federal Constitution. In September, the Mississippi Supreme Court found that the creation of new judgeships for Hinds County violated the state constitution. Federal litigation over other aspects of the law is ongoing. 
• An Arizona bill (H.B. 2757) would have altered the state’s procedures governing judicial retention elections for appellate judges. Under Arizona law, after a court of appeals judge serves a full term, they stand for a districted up-or-down retention election. This bill would have required that all court of appeals judges stand for retention elections statewide. The bill comes just a year after three Maricopa County judges appointed by former Republican governor Doug Ducey lost retention elections, as Maricopa County continues to trend toward Democrats relative to the state as a whole. The bill passed both Republican-controlled legislative chambers before being vetoed by the state’s Democratic governor. 
• A Louisiana bill (H.B. 661) would have stripped powers from the Judicial Council of the Supreme Court of Louisiana, which is a research arm for the state supreme court. Current law provides that the judicial council “shall adopt determinate standards and guidelines which shall be applied by the council in determining whether to approve the necessity of creating any new judgeship” as well as whether to “approve the necessity of splitting or merging” any court district. This bill would have limited the judicial council’s involvement to merely “recommend[ing] to the legislature” that such actions be taken. The bill also would have clarified that the legislature would not be required to “act upon any recommendation of the council.” The bill passed both Republican-controlled legislative chambers before being vetoed by the state’s Democratic governor.
• An Iowa bill (S.F. 171) would have consolidated power over Iowa’s district judicial nominating commission with the governor by empowering the governor to appoint a majority of the 11-member commission. The bill also would have removed from the commission the district’s most senior judge, who serves as the eleventh member and chair, and instead would have permitted the commission to choose its own chair. The bill passed the state senate but failed to otherwise move before the end of the legislative session. In 2019, the legislature passed a similar bill giving the state’s Republican governor authority to appoint a majority of the members on the statewide appellate court nominating commission.
• A bill in Montana (S.B. 72) would have transferred the power to appoint water judges from the chief justice to the governor, while expanding the water court’s jurisdiction and extending water judges’ term of office from four years to six years. Water judges sit in a specialized court called the Montana Water Court to resolve disputes involving water rights, which is a critical issue in many western states.

Legislatures in four states introduced nine bills that would politicize judicial discipline by either altering the composition or powers of state judicial disciplinary bodies, making it easier to impeach judges in the state, or initiating improper impeachment proceedings. Four such bills were enacted.

• North Carolina’s budget (H.B. 259), which passed over the governor’s veto, replaced four members of the state’s judicial standards commission previously selected by the state bar council with two judges selected by the president pro tempore of the senate and two judges selected by the speaker of the house. Prior to these membership changes, the commission made headlines last year for its investigation of North Carolina Supreme Court Justice Anita Earls. The investigation, which concerns comments that the justice made regarding the lack of diversity in the state’s judiciary, prompted the justice to launch a federal lawsuit in which she claims that the commission’s actions violated her First Amendment rights to speak publicly about imperfections and unfairness in the judicial system.
• A Montana law (H.B. 326) altered the composition of the state’s judicial standards commission. It replaced two judges previously selected by the state’s district court judges with two judges selected by the legislature. It also replaced an attorney selected by the Montana Supreme Court with an attorney selected by the state’s elected attorney general. A separate Montana law (S.B. 313) removed a variety of the commission’s confidentiality protections that helped to insulate it from political misuse. These changes were made at the same time the state has seen the use of baseless ethics complaints to smear and discredit sitting judges. For example, in 2022 a Republican operative supporting a supreme court candidate filed two ethics complaints against the incumbent justice that the candidate was running against and sent copies of the unverified complaints to the media a few weeks before Election Day. 
• Another Montana law (S.B. 252) subjects judges and judicial officers to a statutory provision creating civil liability for conduct departing from “the person’s public duty.” 

Three bills introduced in three states would allow for judge-shopping, in an effort by lawmakers to obtain favorable venues in high-profile constitutional litigation and/or redistricting cases. Two such bills were enacted, and an additional bill passed a legislative chamber.

• North Carolina’s budget (H.B. 259) authorizes the legislature to appoint 10 new special superior court judges and grants the state’s conservative chief justice, a close ally of the legislature, the power to handpick the panel of judges hearing all redistricting cases and any facial constitutional challenge to state law. The chief justice’s authority includes the power to appoint the new special superior court judges, who previously were not authorized to sit on such panels. 
• A Kentucky law (S.B. 126) was enacted that would have allowed any party in a constitutional challenge against the state in which the plaintiffs are seeking declaratory or injunctive relief to file a notice seeking a change of venue within 30 days of the lawsuit being served on the defendant. The clerk of the state supreme court was required to transfer the case to another randomly selected circuit court in the state. The law also permitted Kentucky’s attorney general to file a change of venue notice within 30 days of intervening as a defendant in such cases. The Kentucky Supreme Court struck down the law as a violation of separation of powers under Kentucky’s constitution. This was one of a number of judge-shopping efforts in Kentucky in recent years, including a bill enacted in 2021 requiring litigants to file constitutional challenges to state law in the county in which the plaintiff resides, rather than Franklin County. 
• A Texas bill (S.B. 220) would have automatically disqualified any district or county court judges from presiding over election law cases seeking injunctive relief if a locally elected election official was a party in the case unless the election official served statewide. The bill passed the state senate.

Fifty-eight bills in twenty-one 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 guns. Two such bills were enacted.

• A Mississippi law (H.B. 912) prevents the state, including courts, from enforcing any federal law regulating firearm suppressors manufactured in the state if the regulation does not already exist under state law. 
• A Texas bill (S.B. 4) authorizes state magistrates to issue a deportation order after finding probable cause that a foreign national violated state misdemeanor offenses of illegal entry or illegal reentry. But it also removes state courts’ authority to abate prosecutions on the basis that federal immigration proceedings are pending or will be initiated. 

Nineteen bills introduced in four states would have limited judges’ decision-making powers, restricted their control over procedural rules, or empowered nonjudicial actors to exercise courts’ judicial powers. Three such bills passed, and two additional bills passed one legislative chamber.

• A Utah law (H.J.R. 2) and a Montana law (S.B. 191) raised the standard required for state court plaintiffs to win a temporary restraining order and preliminary injunction. H.J.R. 2 also permits parties to petition courts to reconsider injunctions issued under the previous standard. H.J.R. 2 was enacted in response to a Utah judge issuing an injunction that prevented enforcement of the state’s abortion ban, with the bill’s sponsor indicating that the court’s abortion ruling prompted passage of the bill.. S.B. 191 came on the heels of Montana courts weighing in on nearly two dozen bills from the state’s previous legislative session, with the legislature reportedly passing it to undercut litigation concerning Medicaid coverage of abortions. 
• A related Montana bill (S.B. 134) also was enacted, which limits courts’ powers to extend the duration of temporary restraining orders.
• A Montana joint resolution (S.J. 15) would have declared that it is “a myth based on a faulty understanding of Marbury v. Madison” that “the judiciary’s decisions are binding on the other two branches.” Through the joint resolution, the legislature sought to aggrandize its power by declaring that “the legislature and the executive have equal roles in determining the constitutionality of any statute or decision.” The bill passed the state senate but failed to otherwise move before the end of the legislative session. 
• A Texas bill (S.B. 21) would have authorized the state’s commission on judicial conduct to take disciplinary actions against judges based on policy disagreements over bail. Although Texas law provides that bail is “to be regulated by the court,” the bill would add to the list of conduct for which a judge can be sanctioned a new category — “persistent or willful violation” of the criminal procedure code that provides the criteria judges use when setting bail. The bill would authorize the commission to issue sanctions, including the censure and removal of judges. The bill passed the state senate.

Legislatures in three states introduced three bills that would have either gerrymandered courts or created new courts to engineer judicial outcomes supported by the legislature. One such bill passed in Texas.

• A Texas bill (S.B. 1045) created a new statewide court of appeals with exclusive intermediate appellate jurisdiction over most cases brought against the state as well as all constitutional challenges to state law if the attorney general is a party to the case. Prior to the bill’s passage, such cases were decided by judges elected by voters residing in the state’s capital, who are more Democratic than the state as a whole. 

In two states, bills that were passed in response to specific court rulings either failed to keep up with cost-of-living adjustments for judges or undermined the judicial branch’s ability to control its staffing resources.

• Idaho’s budget (H. 348) failed to make cost-of-living adjustments to judicial salaries in what a retired Idaho Supreme Court justice described as an act of retaliation against the state high court for striking down a law two years ago regarding ballot measures. That law, which was passed in response to a successful ballot initiative expanding Medicaid, would have made it difficult for Idahoans to pass ballot initiatives going forward. Since then, the legislature has dragged its feet in providing pay raises to the state judiciary. In 2022, the Idaho budget provided a 7 percent cost-of-living pay increase to most state employees but did not include a cost-of-living adjustment for Idaho judges. Last year’s budget further widened the cost-of-living gap between judges and other state employees, providing only a 3 percent pay raise for Idaho judges compared to a 4 percent pay raise for all other state employees.
• A Montana law (S.B. 410) amended the statutory duties of the Montana court administrator by no longer permitting the administrator to “perform other duties that the supreme court may assign.” The administrator is a legislatively created office that assists the Montana Supreme Court with its administrative duties. In recent years, the administrator has been a key figure in a political feud between the legislature and the state high court over the scope of legislative subpoena powers.