Legislative Assaults on State Courts – 2019

This post was updated on January 24, 2020

Our democracy depends on fair and independent courts to protect against abuses of power, provide checks and balances, and administer justice without regard to outside pressures. State courts, where 95 percent of all cases are filed, play a crucial role – yet they are often far more vulnerable to political pressure and interference than the federal courts.

A Brennan Center review of bills introduced in state legislatures in 2019 shows that across the country, legislators considered changes to state courts that would have diminished the role or independence of the judiciary, or made it harder for judges to do their job.* In 2019, bills introduced in at least 25 state legislatures risked weakening the courts by giving political actors more control over judicial selection, judicial decision-making, or judicial administration.

Efforts to manipulate courts are not new. Over the course of 2018, the Brennan Center documented 60 bills in 18 states that would have politicized or undermined the independence of state courts. Bills passed out of the legislature in West Virginia, where legislators impeached every sitting justice on its supreme court, and in North Carolina, where lawmakers passed and put before voters a proposal to give the legislature new powers to pick judges – voters ultimately rejected the proposal.  

Now, with a newly solidified conservative majority on the U.S. Supreme Court, state courts are likely to become increasingly important venues for fights over certain fundamental rights – inviting more political attention. President Trump’s continued attacks on courts for rulings he disagrees with, meanwhile, provide political cover to state legislators to do the same.

*These bills were identified by the Brennan Center through CQ StateTrack, provided by the Piper Fund, as well as media reports and the National Center for State Courts’ Gavel to Gavel database.

In 2019, legislators in at least 25 states considered at least 48 bills to diminish the role or independence of state courts.

• Eighteen bills in fourteen states would have injected more politics into how judges are selected.
• Ten bills in nine states would have prevented courts from deciding certain cases or take away courts’ authority to manage their own rules or resources.
• Eleven bills in seven states would have led to more guns in courthouses, even if courts themselves wanted to prohibit weapons.
• Nine bills in seven states would have stripped courts’ jurisdiction, shrunk courts for partisan gain, or subjected judges to more frequent elections and political pressure.
• Twenty bills advanced in significant ways in 2019, either passing favorably out of a committee or subcommittee, receiving a hearing, passing through one house of the legislature, or even getting enacted into law.

One pattern that emerged in 2019 was partisan elected officials seeking more power to decide which judges hear cases challenging their actions. In Kentucky and Florida, bills to change which judges hear high-profile cases against the government advanced, one of which passed in Kentucky. Several of this year’s bills are also examples of legislative retaliation against courts for specific rulings – rulings related to marriage equality and reproductive rights in Iowa, rulings related to reproductive rights in Alaska and Kansas, and a high-profile ruling striking down a pension-reform plan prioritized by the governor and the legislature in Kentucky. In Iowa, while bills have been introduced in previous years to change the system for picking judges, lawmakers successfully gave the governor more control over that state’s nominating commission.

While not an act of the legislature, Alaska’s governor carried out one of the most direct attacks on the judiciary that we observed in 2019. The governor used his line item veto authority to strike $335,000 from the judiciary’s budget in retaliation for a state supreme court decision related to state funding of abortion services. The governor’s veto statement said, “[t]he legislative and executive branch are opposed to state-funded elective abortions; the only branch of government that insists on state-funded elective abortions is the Supreme Court. The annual cost of elective abortions is reflected by this reduction.” 

And in Texas, the legislature passed a bill (HB 3040/SB 1728) establishing a commission to study how the state selects its judges. Currently, Texas holds partisan elections for most judgeships, and supreme court elections there have long been expensive and attracted controversy. While not included in this list of legislative attacks on state courts, the timing of this bill – shortly after the election of nineteen Black women to local judgeships in Houston the previous year – raises concerns about the motives behind the study.

To be sure, many states’ methods of selecting judges are in need of reform, but changes must be carefully designed to protect judicial independence and avoid political and special interest pressure on the judiciary. The Brennan Center recently put forth a proposal for judicial selection that addresses contemporary threats to judicial independence.

The following is an overview of the bills introduced on the state level in 2019, broken down by how they might weaken the independence or power of the judiciary.

Compromising Judicial Selection

In 14 states, 18 bills would have changed how judges are selected, making the process more partisan or political. States use several different methods to select judges, including contested elections and “merit selection” systems, where candidates are vetted by an independent nominating commission. New bills would have weakened existing safeguards that insulate judges from outside pressure, including subjecting judges to new elections, weakening the role of independent nominating commissions, and giving partisan legislators an outsized role in choosing judges.

Laws that create a partisan advantage in judicial selection:

• In Alaska, the Judicial Council, which vets judicial candidates and creates a shortlist of candidates for the governor, is comprised of three attorney members appointed by the state bar, three non-lawyers appointed by the governor, and the state’s chief justice. A proposed constitutional amendment (SJR 3) would have subjected the lawyer members to confirmation by the legislature, giving partisan legislators the power to reject the bar’s appointees. SJR 3 was reported out of the Alaska Senate Judiciary Committee. A similar bill in Wyoming (SF 141) would have given the state senate the power to reject members of the state’s independent judicial nominating commission chosen by the governor and the state bar. SF 141 passed out of the Wyoming Senate Transportation, Highways & Military Affairs Committee with an amendment removing the provision that would have subjected the commissioners elected by the bar to senate confirmation.
• In Iowa, the legislature passed a bill (SF 638) giving the governor authority to appoint a majority of the 17-member nominating commission the state uses to nominate judges for the state’s supreme court and intermediate court of appeals. Previously, the commission was equally divided between members chosen by the governor and members chosen by the state bar, and it was chaired by the senior-most supreme court justice who was not the chief justice. SF 638 removed the justice from the commission, gave the governor an additional appointment, and reduced the term of the chief justice, including former Chief Justice Mark Cady, from the justice’s full term in office to two years. Earlier proposals (HF 503/SF 237) would have removed the eight commissioners elected by the state bar and the seat reserved for a supreme court justice, replacing them with commissioners appointed by the majority and minority leaders in the legislature. Those bills would have guaranteed that members of the governor’s party appointed 12 out of the 16 commissioners, and all commissioners would be political appointees. Conservative legislators’ frustration with the state supreme court dates back to at least the 2009 Varnum v. Brien decision, written by Cady, in which the court found a right to marriage equality under the state’s constitution. Following that decision, conservatives successfully campaigned to defeat three justices in their retention elections. SF 237 passed through the Iowa Senate with an amendment that would have limited the changes to Iowa’s statewide appellate court commission, leaving lower court nominating commissions unchanged. 
• In Kentucky, a proposed constitutional amendment (HB 123) would have put party labels on the ballot for the election of state supreme court justices and judges for intermediate appellate and trial courts. Currently, judicial elections are nonpartisan. This bill was introduced after former Gov. Matt Bevin called a unanimous Kentucky Supreme Court decision striking down his pension reform plan “an unprecedented power grab by activist judges.” Similarly, a proposed constitutional amendment in Arkansas (HJR 1006) would have had voters elect judges at all levels on a partisan basis. Currently, judicial elections are nonpartisan, but in 2018 conservative groups unsuccessfully spent more than a million dollars to defeat a justice they attacked as “liberal judicial activist.” 
• A proposed constitutional amendment in Pennsylvania (HB 196) would have had voters elect appellate judges by districts, rather than statewide. While districted elections are not always harmful, they can open the door to gerrymandering and other partisan gamesmanship. The Republican sponsor of HB 196 introduced the same bill last session after Democrats gained a majority of seats on the Pennsylvania Supreme Court. HB 196 passed the Pennsylvania House.

Laws that would make judicial selection more political:

• A bill in Arizona (HB 2043) would have required municipal court judges who wished to serve another four-year term to stand for retention elections. Currently, the largest cities in Arizona use an independent commission to determine whether judges should be reappointed. Requiring judges to appear before voters every four years increases the political pressures they face while making decisions from the bench, threatening judicial independence. HB 2043 was reported out of three committees in the Arizona House.
• Proposed constitutional amendments in Hawaii (SB 864, HB 1311/SB 1457) would have given the state senate the power to reject the reappointment of a sitting supreme court justice. Currently, Hawaii’s independent Judicial Selection Commission makes the final decision as to whether or not to reappoint a sitting justice. These proposals would have given a political branch of government new power over a process regarded as effective at insulating judges from political pressure. A bill in Tennessee (HB 1257/SB 1408) would have similarly given the legislature new power to reject appointments and reappointments of lower court judges and senior judges. Currently, the governor selects lower court appointees from a list submitted by the state’s trial court vacancy commission, and senior judges are appointed by the state supreme court. 
• A proposed constitutional amendment in Oklahoma (SJR 12) would have required judges, who already must stand for periodic retention elections, to win 60 percent of the vote in order to remain on the bench. Currently they must win 50 percent of the vote. Retention elections already place undesirable political pressures on judicial decision-making; the need to command a supermajority of the vote could worsen these pressures. In recent years, Oklahoma officials have gone to extremes to bring courts in line with their views, even threatening to impeach multiple justices and to ignore a court ruling halting two executions. SJR 12 was approved by the Oklahoma Senate Rules Committee. 
• In Montana, a bill (HB 484) would have required the Secretary of State to include in voter pamphlets arguments for and against the retention of an incumbent justice who is seeking reelection but not facing an opponent. The arguments for and against retention would have been prepared by two committees—one in favor of retention and one opposed to retention—appointed by the majority leaders in the legislature and the governor. Providing information to voters is essential, particularly in low-information judicial races, but requiring that a partisan committee formulate arguments against retention of a justice may increase the likelihood that justices will consider the possible arguments against them while deciding controversial cases. HB 484 received a hearing in the Montana House State Administration Committee.

Laws that would weaken or eliminate independent judicial nominating commissions:

• In Missouri, a proposed constitutional amendment (HJR 2) would have eliminated the state’s judicial selection commissions, the independent bodies that vet judicial applicants and put forth a shortlist from which the governor must choose. This amendment would have given the governor the power to directly appoint supreme court, court of appeals, and some circuit judges, subject only to confirmation by two-thirds of the state senate. Republicans currently hold a two-thirds supermajority in the legislature and have accused the state supreme court of going “rogue” in recent decisions, including one upholding a local minimum wage provision, and decried the nominating commission itself for being too liberal.
• A proposed constitutional amendment in Missouri (SJR 3) and bills in South Carolina (H 3953, S 170) would have kept nominating commissions in name but significantly limited their role. Currently those states’ commissions submit their three preferred candidates to the appointing authority (the governor in Missouri and the legislature in South Carolina). The proposed legislation would have limited the commissions’ role to determining only whether each applicant is “qualified,” and required them to submit all qualified nominees to the appointing authority, giving the political branches more choices and influence over the selection of judges. SJR 3 passed out of the Missouri Senate’s Government Reform Committee.  
• A proposed constitutional amendment in Kansas (SCR 1610) would have eliminated the state’s judicial selection commission, giving the governor or chief justice the power to make appointments to the state supreme court, subject to the state senate’s confirmation. Under current law, the commission recommends three candidates for the governor to choose from for appointment. In recent years, litigation related to funding for the state’s public education system have resulted in several attempts by the legislature to constrain the Kansas Supreme Court’s jurisdiction.

Interfering with Judicial Decision-Making

Nine states considered legislation that would have put undesirable pressure or restrictions on judicial decision-making. Judges must be able to decide cases without fear of retribution, yet some of these proposals would have increased the likelihood of a judge facing backlash for unpopular rulings. Others would have empowered politicians to alter court procedures for reasons other than fair and efficient decision-making.

• A proposed constitutional amendment in Arizona (HCR 2006) would have given the legislature and voters the power to amend or repeal any substantive, procedural or evidentiary rules made by the state supreme court. The proposal would have amended the constitution to state plainly that enacting rules on these matters “is a legislative power,” and “not a power inherent in the judiciary.” A similar proposal in Arkansas was certified to go before voters last November but was ultimately ruled invalid by the Arkansas Supreme Court.
• A bill in South Carolina (S 29) would have prohibited courts from applying foreign law when it would violate a person’s fundamental rights. The bill’s language came from model legislation designed by an anti-Muslim activist, intended to stoke public suspicion of Islam and Sharia law, according to reports by the Southern Poverty Law Center (SPLC) and the Brennan Center. A similar bill was introduced in Iowa (HF 314). A proposal in Oregon (SB 467) more explicitly stated that courts “may not consider Sharia law in making judicial decisions.” SPLC reports that, since 2010, 43 states have considered and 14 have enacted anti-Sharia law bills like these.
• Bills in Texas (HB 1035) and Colorado (HB 1140) would have prohibited state courts from penalizing or stopping any person or religious organization from discriminating against an individual on the basis of sexual orientation or gender identity in the name of religious freedom. The proposals also would have provided that aggrieved parties could sue the judicial branch for damages if a court was found to have violated the law. These bills are similar to other “religious freedom” bills introduced in Texas in recent years. HB 1035 received a hearing in the Texas House State Affairs Committee.
• A proposed constitutional amendment in West Virginia (SJR 5) would have taken away the authority of state courts to hear challenges to state house or senate impeachment proceedings. In the fall of 2018, acting justices on the West Virginia Supreme Court halted the impeachment trials of three supreme court justices, finding that the state house’s articles of impeachment violated constitutional procedural requirements. SJR 5 passed through the West Virginia Senate but was ultimately rejected by the House.
• An amendment to another bill in West Virginia (SB 398) related to the compensation of senior judges. It would have withheld judicial retirement benefits until the state supreme court revisited and overturned its decision to intervene in the impeachment proceedings. The amendment passed out of the West Virginia Senate but was removed in the House.  
• In Tennessee, a bill (HB 1369/SB 1282) would have rejected the U.S. Supreme Court’s decision in Obergefell v. Hodges, in which the Court recognized same-sex marriage “and any other decision purporting to strike down natural marriage” as unauthoritative, void, and of no effect. The bill would have also prohibited state and local officials from giving effect to any court order that “has the effect of violating Tennessee’s laws protecting natural marriage.” Similar bills were introduced and failed to advance in 2016 and 2017.
• In Kansas, a proposed constitutional amendment (HCR 5010) would have required the state supreme court to issue its opinions on cases or decisions on motions within one year after it received all final arguments. HCR 505 was introduced a month before the Kansas Supreme Court issued its ruling that the state’s constitution protects a woman’s right to an abortion. The court’s decision came more than two years after it heard the case. A similar proposal was introduced in Florida in 2017.

Shield the Legislature from Court Rulings

Proposals in three states would have made it more difficult, or impossible, for courts to carry out one of their core responsibilities, interpreting whether state or federal laws satisfy the United States Constitution.

• A proposed constitutional amendment in Missouri (HJR 34/HJR 35) would have allowed the legislature or Missouri voters to vote on whether federal laws are constitutional. If voters or state legislators decided a federal law was unconstitutional, Missouri courts would have been prohibited from enforcing that law, and stripped of jurisdiction over any cases involving that law or any similar state law. Similar proposals were introduced in 2018 and 2017.
• A bill in Texas (HB 1347) would have allowed the legislature to declare a decision of any federal court, including the United States Supreme Court, unconstitutional. If the legislature declared a federal court decision unconstitutional, including a decision striking down a Texas law, no Texas official could enforce that federal court ruling. Lawmakers in Idaho introduced similar bills in 2018 and 2017. HB 1347 received a hearing in the Texas House State Affairs Committee.
• In Alaska, a bill (HB 179) would have added “exercising legislative power” as a basis for impeaching a judge and would have exempted such a finding by the legislature from judicial review. Similar proposals were introduced in Alaska in 2018 and in Kansas in 2016 but failed to advance through the legislature.

Judge-Shopping for Partisan Advantage

In addition to picking who reaches the bench in the first instance, legislators can gain an advantage in the courts by handpicking the judges who will or will not hear certain cases in their respective jurisdictions. They can do this by redrawing judicial districts, changing court jurisdiction, or by altering methods for assigning cases.

• A bill in Kentucky (SB 2) would have changed which courts hear constitutional challenges to state statutes or regulations. The bill would have allowed the government defendants to request that such a challenge be heard by a special judge selected, at random, by the chief justice of the state supreme court from anywhere in the state rather than the Circuit Court of Franklin County, home to the state capital. This is likely because the Franklin County Court includes a judge whom former Gov. Matt Bevin called an “incompetent hack” and tried to remove from the case that struck down the governor’s pension reform law. SB 2 passed the Kentucky Senate with an amendment over the objections of Kentucky’s Chief Justice who said the bill would have “a ruinous effect on the court of justice.” As amended, the bill would have required the clerk of the circuit court in the county in which the challenge was originally filed to select “by random lottery draw” another county in Kentucky to hear the case. A similar bill in Florida (SB 1630) would have required the Clerk of the Florida Supreme Court to use a “blind, random selection process” to assign constitutional challenges to circuit courts across the state. Currently, such challenges are filed in the state capital, Leon County, and a number of state laws have been overturned as unconstitutional by Leon County circuit judges, most recently a law making it harder for local jurisdictions to enact gun control. SB 1630 was approved by the Florida Senate Judiciary Committee.
• Another bill in Kentucky (SB 214) changed the jurisdiction and venue for cases involving challenges to legislative districts from the Circuit Court of Franklin County to a panel of three circuit court judges. SB 214 was signed into law.

Altering Judicial Term Lengths and Limits

The shorter a judge’s term length, the greater the pressure that judge may feel to rule with electoral or political considerations in mind. Term limits can be desirable in many instances, but judges must be allowed sufficient time to serve and should not be removed from the bench for partisan reasons.

• In West Virginia, a proposed constitutional amendment (SJR 6) would have reduced the terms of supreme court justices from 12 years to eight, subjecting those judges to more frequent elections and thus accompanying political pressure.

Changing the Size of Courts

Adding or removing seats from a court allows legislatures or governors to gain advantage in courts without needing to change the rules for how judges are selected. They can add seats for themselves to fill, or remove seats held by judges they disagree with.

• In Washington, a proposed constitutional amendment (HJR 4201) and a bill (HB 1081) would have reduced the number of justices on the state supreme court from nine to five. Voters would elect all five justices in the 2020 general election. Washington’s supreme court has faced numerous legislative attempts to alter its makeup and constrain its authority as a result of a prolonged battle over a 2012 decision finding that the legislature was inadequately funding the state’s education system.

Allowing Firearms in Court

Courts continue to be pulled into broader efforts to empower gun owners to carry weapons in public spaces.

• Bills in Georgia (SB 224), Illinois (HB 248, HB 911), Indiana (HB 1235), Mississippi (HB 524), South Carolina (HB 3073, HB 3472), Texas (HB 1085, HB 2051, HB 3136), and Virginia (SB 338) 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. HB 1235 passed the Indiana House, H 3472 passed the South Carolina House, HB 2051 was reported out of the Texas Homeland Security & Public Safety Committee, and HB 3136 was reported out of the Texas House Judiciary & Civil Jurisprudence Committee.

Image: Eric Thayer / Getty