Legislative Assaults on State Courts – 2020

In recent years, political attacks on the judiciary have been the norm.

Most prominently, President Trump has continued to lash out at judges for decisions he disagrees with, including the judges who have rejected his attempts to overturn the 2020 election.

Receiving less attention, however, is how state legislators and governors across the country have used their power to try to weaken or politicize the role of state supreme courts, often in retaliation for decisions they disagree with. Given the rightward shift of the federal judiciary, state courts are more important than ever for protecting fundamental rights. But they are vulnerable.

To play their proper role in our democracy, state courts must be — and appear to be — able to make unpopular decisions, including ruling against the governor and legislature when necessary. Governors and legislators undermine this important function when they make it harder for courts to rule against them or retaliate against judges for decisions they dislike. And political officials undermine public confidence when they manipulate judicial selection to get their partisan allies on courts.

Yet 2020 saw a continuation of state lawmakers’ efforts to politicize state courts. Because Covid-19 disrupted legislative sessions across the country, we do not know how these proposals would have fared under normal circumstances, but they provide a window into how legislators may try to exert more power over the courts in the coming year.

In all, a Brennan Center review of bills introduced in state legislatures shows that across the country, bills that would give partisan officials greater influence over the courts; limit courts’ control over their dockets or resources; or allow the legislature to overrule or refuse to enforce judicial decisions were introduced in at least 17 states.* (This compares to at least 25 states in 2019 and at least 18 states in 2018.)

Of the bills that advanced, two stand out. In Pennsylvania, legislators set up a potentially major change to the state’s appellate courts in 2021, advancing a proposed constitutional amendment that would require judges, who currently run statewide, to run in districts drawn by the legislature. If passed again this year and approved by voters, this change would empower the legislature to oust judges they dislike by drawing district lines that undermine their chances of reelection. In Missouri, meanwhile, voters narrowly approved a legislatively proposed constitutional amendment that limits courts’ ability to rule on redistricting matters.

*These bills were identified by the Brennan Center through CQ FiscalNote and CQ StateTrack (provided by the Piper Fund), as well as media reports. 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.

In 2020, legislators in at least 17 states considered at least 42 bills to diminish the role or independence of state courts.

• Eleven bills in 6 states would have injected more politics into how judges are selected.
• Fifteen bills in 10 states would have put pressure or restrictions on judicial decision-making or taken away courts’ authority to manage their own rules or resources.
• Eight bills in 6 states would have allowed state legislatures to refuse to enforce court decisions or laws they disagree with.
• Two bills in 2 states would have insulated the legislature from judicial oversight by ensuring more favorable judges hear challenges to state law.
• Four bills in 1 state would have subjected judges to more frequent elections and political pressure.
• Two bills in 1 state would have led to more guns in courthouses, even if courts themselves wanted to prohibit weapons.

One of these bills was enacted into law. An additional ten bills advanced in significant ways, either passing favorably out of a committee or subcommittee, receiving a hearing, or passing through one house of the legislature. Legislators in Pennsylvania also advanced one measure such that it could go before voters for approval as early as May 2021.

The following is an overview of the bills introduced at the state level in 2020, broken down by how they might weaken the independence or power of the judiciary.

Compromising Judicial Selection

Six 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, including contested elections and “merit selection” systems, where candidates are vetted by an independent nominating commission and appointed by the governor. 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 Pennsylvania, the Republican-controlled legislature approved a proposed constitutional amendment (HB 196/SB 1231) that would have voters elect appellate court judges by district rather than statewide. While district-based judicial elections are not inherently problematic, the Pennsylvania measure would open the door to judicial gerrymandering and appears targeted at eliminating the state supreme court’s current Democratic majority. HB 196 was first introduced by a Republican lawmaker in 2017 after Democrats gained a 5–2 majority on Pennsylvania’s supreme court. The proposal imposes few limits on the legislature’s ability to draw (or redraw) judicial districts, and it would require sitting justices to run for reelection in one of the new districts created by the legislature when his or her term ends in a contested election, as opposed to a retention election. It also gives lawmakers control over the timeline for moving to district-based elections, meaning the legislature could time the state’s move to districted elections to target individual judges they disfavor. If approved by the legislature again in 2021, the amendment could go before voters as early as May 2021.
• In Washington, a proposed constitutional amendment (SJR 8215) similarly would have had voters choose supreme court justices by district rather than statewide in primary elections. The amendment, sponsored only by Republican state senators, would have allowed the legislature to draw and redraw state supreme court districts and required the governor to fill interim vacancies with a justice from the judicial district where the vacancy occurred. Republican lawmakers have regularly targeted the Washington Supreme Court in recent years with proposals to shrink it and allow lawmakers to override its decisions.

Laws that would give partisan actors more control over the selection process:

• In Oklahoma, a bill (SB 1861) would have removed all six state bar-appointed attorney members on the state’s nominating commission, replacing them with six attorney members appointed by the Republican House speaker and Senate president. In recent years, Republican legislators have clashed with Oklahoma’s supreme court on a range of decisions, from the staying of executions to the striking down of restrictions on abortion.
• In Utah, a bill (SB 172) would have allowed the governor to appoint all seven members of the state’s appellate and trial court nominating commissions without restriction and removed the requirement that no more than four members be from the same political party. Currently, the governor appoints six of the seven commissioners, two of whom must be chosen from a list of nominees from the state bar, and the state’s chief justice chooses a seventh, nonvoting member. SB 172 was approved by the Utah Senate Judiciary, Law Enforcement, and Criminal Justice Committee.

Laws that would weaken or eliminate independent judicial nominating commissions:

• In Alaska, a bill (SB 200) would have prohibited the state’s judicial council from submitting a judicial candidate to the governor for consideration unless it determined that the candidate would adhere to the legislature’s preferred methods of legal interpretation, “strict constitutional interpretation of statutes and regulations and adhering to legislative intent.” The bill would have also required judicial nominees, who are currently vetted by the judicial council and appointed by the governor, to be confirmed by a majority of the members of the legislature in joint session.
• In Missouri, a proposed constitutional amendment (SJR 39) would have required the state’s nonpartisan judicial commission to provide the governor with a list of “all qualified nominees” to choose from for appointment. Currently, the commission has the authority to narrow the list to the candidates it considers most qualified and to pass along a list of as few as three candidates. This bill follows accusations by conservative lawmakers that Missouri’s supreme court has gone “rogue“ and that the state’s nominating commission is “too liberal.” SJR 39 received a hearing and was approved by the Missouri Senate Government Reform Committee. Another proposed constitutional amendment (SJR 51) and bill (SB 683) would have gone even further by eliminating the state’s nonpartisan nominating commission and requiring all circuit and associate circuit judges to be elected. SJR 51 and SB 683 received a hearing in the Missouri Senate Local Government and Elections Committee.
• In Oklahoma, a proposed constitutional amendment (SJR 39) would have required the state’s judicial nominating commission to submit a list of all applicants to the governor. It would have also required the governor’s nominee to be confirmed by the state Senate. Currently, the commission recommends three candidates to the governor for the governor to choose from for appointment. Another proposed constitutional amendment (HJR 1033) would have eliminated the state’s judicial nominating commission, giving the governor the power to directly appoint appellate court judges, subject to confirmation by a majority vote of the majority and minority leaders of the legislature and the lieutenant governor. It would have also given the legislature the power to change or create an alternative process for confirming judges by passing a law. Another bill (SB 1626) would have given the governor the power to directly appoint district court and intermediate appellate court judges, subject to the state Senate’s advice and consent, without vetting by the state’s judicial nominating commission. A proposal similar to SB 1626 was introduced in Kansas in 2019.
• In Utah, a proposed constitutional amendment (SJR 8) would have replaced the state’s judicial nominating commission with nonpartisan elections. Utah’s judicial nominating commission has been accused by conservative lawmakers of picking judges who are “too liberal.”

Interfering with Judicial Decision-Making

Nine states considered legislation that would have put political, financial, or other pressures 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. Other proposals would have empowered politicians to alter court procedures to restrict judicial autonomy.

• In Alabama, legislators introduced a bill (HB 275/SB 200) to speed up death sentences by limiting judicial review of capital cases. Initially, the bill would have vested exclusive appellate jurisdiction over death penalty cases in the Alabama Court of Criminal Appeals, eliminating the Alabama Supreme Court’s discretion to review such cases. The Alabama Senate and House Judiciary Committees, however, amended the bill to achieve the same goal by eliminating direct appeals of death penalty cases to the Alabama Court of Criminal Appeals, giving the Alabama Supreme Court exclusive appellate jurisdiction over capital cases.
• In Colorado, a bill (HB 20–1033) would have prohibited state courts from taking any “action” against any person or religious organization for discriminating against an individual or group on the basis of sexual orientation or gender identity for religious reasons. HB 20–1033 is similar to other “religious freedom” bills introduced in Colorado and Texas in recent years.
• In Iowa, a bill (SSB 3181) would have vested the Iowa Supreme Court with exclusive authority to rule on the constitutionality of laws passed by the legislature. Among other things, the bill would have also prohibited the state supreme court from finding a state law unconstitutional unless a supermajority of justices (5 of 7) agreed, and the court’s ruling would have had no effect for one year, during which time the legislature could “compel attendance of specified justices to a public hearing to discuss and debate the justification for the decision” with legislators. The bill would have also allowed the legislature to override, with two-thirds majority in both chambers, any court decision invalidating a state law. Iowa’s supreme court has faced continued attacks from conservative legislators since its 2009 decision finding a right to marriage equality under the state’s constitution.
• In Kansas, a bill (HB 2591) would have allowed a sitting member of the state legislature to remain in a courtroom that has been closed by a district judge or district magistrate judge for “any reason other than a reason specified in statute.” The Kansas Bar Association noted that the bill “impinges on a judge’s authority over his courtroom.”
• In New Jersey, a bill (A 3770) would have prohibited courts from enforcing foreign law if its enforcement would violate constitutional rights or conflict with federal or state law. Similar bills were introduced in South Carolina (H 4767) and West Virginia (HB 4109). These measures are part of a national trend of “anti-Sharia laws” meant to stir up fears of Islam and Sharia law. Since 2010, these bills have been considered in at least 43 states and enacted in 14 states, according to the Southern Poverty Law Center.
• In Missouri, voters approved a constitutional amendment proposed by the legislature (SJR 38) that significantly limits residents’ ability to challenge legislative redistricting maps in court; requires challenges to legislative redistricting maps to be brought in Cole County only; and limits how much a court can modify a map to bring it into compliance with the law. The Missouri Constitution previously did not place any restrictions on the right of residents to challenge maps in court, and any such challenge could be filed in a court where the resident lives.
• In Missouri, a bill (HB 1937/SB 899) would have repealed rules promulgated by Missouri’s supreme court last year to reform pretrial release and bail in the state. HB 1937 received a public hearing and was voted out of the Missouri House Judiciary Committee and Rules – Administrative Oversight Committee.
• In West Virginia, a proposed constitutional amendment (HJR 101) would have allowed the legislature to approve or disapprove of rules promulgated by the state’s supreme court and circuit courts. Similar proposals were introduced in Arizona and Arkansas in recent years. The Arkansas proposal, which would have capped lawsuit damages and shifted court rule-making authority from the state’s supreme court to the legislature, was certified to go before voters in November 2018, but the state supreme court ultimately struck it down for unconstitutionally combining unrelated proposals in one amendment.
• In West Virginia, a proposed constitutional amendment (HJR 109) would have eliminated the authority of state courts to stay or enjoin impeachment proceedings or impeachment trials in the legislature. It would have also exempted from judicial review or judicial interpretation any rule of practice or procedure adopted by the legislature for a trial on articles of impeachment. A similar proposed amendment (SJR 7) would have provided that state courts had no authority to interfere with legislative proceedings. Another proposed amendment (SJR 1) would have eliminated the authority of state courts to “intercede or interfere” with impeachment proceedings and would have also exempted from judicial review any judgment rendered by the state Senate after an impeachment trial. Last year, the state Senate passed a similar proposal; however, it was ultimately rejected by the state House. The Senate Judiciary Committee approved of SJR 7 and added an explanation that the measure’s purpose was to nullify the state supreme court’s 2018 decision halting the legislature’s impeachment of three justices over their alleged abuse of state funds as a violation of the state constitution’s separation of powers clause.
• In Washington, a bill (SB 6353) would have required the state’s Office of Financial Management to issue a press release with a fiscal note “estimating the impact of Washington state supreme court decisions that increase or decrease or tend to increase or decrease state and local government revenues or expenditures.” A similar bill was introduced in 2018. Washington’s legislature has regularly clashed with the state’s supreme court since the court issued a 2012 decision holding the state was unconstitutionally underfunding its K–12 public school system. 

Shield the Legislature from Court Rulings

Proposals in six states would have allowed states to refuse to enforce federal or state laws or court decisions they disagree with.

• In Alabama, a bill (HB 123) 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.
• In Indiana, a bill (HB 1089) would have criminalized abortion and deemed any court decision striking the law down as “nonauthoritative, void, and of no force.” A similar bill in Missouri (HB 1799) would likewise have 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. Another bill in Missouri (HB 2285) would have deemed any court decision enjoining the state from “protecting innocent human life from the moment of conception” as “nonauthoritative, void, and of no force.” Similar bills that would have prohibited state and local officials from enforcing court orders recognizing marriage for same-sex couples were introduced in Tennessee in previous years.
• A bill in Mississippi (SB 2238) would have prohibited state courts from enforcing all federal “acts, laws, orders, rules, and regulations, whether past, present, or future, which infringe on the people’s right to keep and bear arms” as guaranteed by the Second Amendment. A similar bill in Oklahoma (HB 2901) would have prohibited law enforcement officers 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. HB 2091, as amended, was voted out of the Oklahoma House Public Safety Committee.
• Bills in Oklahoma (SB 1477) and South Dakota (HB 1261) would have established joint legislative committees to determine the constitutionality of federal actions. If state legislators decided a federal action was unconstitutional, courts in the state would have been prohibited from enforcing that action. The bills would have also allowed individuals to seek a declaratory judgment as to the constitutionality of federal actions and required courts in the state considering such claims to “rely on the plain meaning” of the text of the U.S. Constitution as understood by its framers.

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.

• In Florida, a bill (SB 1740) would have required the clerk of the Florida Supreme Court to use a blind, random selection process to determine the venue for lawsuits challenging the constitutionality of a statute or legislative action. Currently, such challenges are filed in Leon County (the state capital), and a number of state laws, including a law making it harder for local jurisdictions to enact gun control, have been overturned in recent years by Leon County circuit judges. Similar bills were introduced in Florida and Kentucky last year. 
• In Utah, a bill (SJR 5) would have amended the state’s rules of civil procedure to allow no-cause disqualification of one judge in every civil case. SJR5 was reported out of the Utah Senate Judiciary, Law Enforcement, and Criminal Justice Committee with an amendment that would have only permitted no-cause disqualification in counties with seven or more district court judges. While no-cause disqualification, which at least 17 other states allow, can strengthen recusal practices by encouraging litigants to file meritorious recusal motions without fear of reprisal, SJR 5 may have been introduced in response to a judge who challenged the sponsor’s law firm “on 60 different cases, cutting by more than half the attorney fees awarded it and also confronted it over due process issues.”

Reduce or Control Court Resources

One state would have given the legislature increased control over judges’ compensation. When legislators threaten to cut judicial funding unless judges adhere to the legislature’s wishes, it violates the separation of powers principles that our democracy relies on. And actual losses of funding or resources can force courts to close or lead to case backlogs, making it harder for individuals to access justice.

• In Oklahoma, a bill (HB 3562/SB 1220) would have required the legislature to pass a law approving or amending the state Board on Judicial Compensation’s recommendation for judicial salaries before the new salary could take effect. Under current law, the board makes recommendations for judicial salaries every two years, and the legislature can either approve the board’s recommendation by taking no action, or it can pass a law amending or rejecting the board’s recommendation. HB 3562 passed the Senate but was voted down in the House.

Altering Judicial Term Lengths and Limits

One state would have altered judicial term lengths in ways that would have made state supreme court justices and lower court judges more dependent on voters or the legislature for their job security. 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 New Jersey, a proposed constitutional amendment (ACR 37) would have reduced the initial term of appointed state supreme court justices from seven to five years and required sitting justices wishing to serve until the state’s mandatory retirement age of 70 to be reappointed by the governor, subject to the state Senate’s approval, and approved by voters. Under current law, the governor may reappoint a sitting justice for tenure (i.e., a term lasting until the justice reaches the state’s mandatory retirement age), with the state Senate’s advice and consent.
• Another proposed amendment (SCR 64) in New Jersey would have reduced the initial terms of appointed justices to from seven to four years and abolished tenure for state supreme court justices. Under the amendment, any justice wishing to serve until the state’s mandatory retirement age, including current justices on the court who have attained tenure, would be required to stand in a retention election every four years. The sponsor’s statement for SCR 64 refers to New Jersey’s supreme court as having a “decades-old reputation for being a very activist court” and notes the court’s decisions on education policy and affordable housing as examples of such judicial activism.
• Another proposed amendment (SCR 47) and bill (S 1064) in New Jersey would have given the state Senate the power to directly reappoint justices and certain lower court judges to serve past the state’s mandatory retirement age for additional two-year terms, eliminating the governor’s ability to nominate new judicial candidates. New Jersey’s Working Families Party criticized SCR 47 and S 1064 as measures that would give justices and judges “a strong incentive to decide controversial cases in ways that cater to the senators who will decide whether they can remain on the bench.”

Allowing Firearms in Court

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

• In Oklahoma, a bill (HB 2796) would have allowed members of the legislature, certain county or municipal peace officers, and persons with valid handgun licenses to carry concealed firearms in state buildings or offices, including courthouses. Another bill in Oklahoma (HB 3422) was amended to allow members of the legislature and certain local peace officers to carry concealed firearms in state buildings or offices, including courthouses. HB 3422, as amended, was approved by the Oklahoma House Public Safety Committee.