Legislative Assaults on State Courts in 2024

Since the Supreme Court overturned Roe v. Wade in 2022, abortion-related politics have loomed large over state judiciaries. In 2024, state supreme courts across the country continued to issue major decisions in cases affecting abortion rights. Money poured into state supreme court elections in states where fights about abortion access run through supreme courts, and 10 states had abortion-related amendments on the November ballot. State judiciaries will soon be tasked with deciding whether anti-abortion laws violate the newly enacted amendments.

Where state courts decided abortion cases, political fights over judicial selection often followed. In Oklahoma, the state senate passed a resolution, later defeated in the house, to refer a constitutional amendment to the ballot that would have abolished the state’s judicial nominating commission and empowered the governor to make all judicial appointments, subject to the advice and consent of the state senate.footnote1_j4zPl092oPIGnUPoxuCiWrKfKph8shB5GcQPdg528_tEhPmu7FWhug1OK S.J.R. 34. (A house version of the bill also gave itself a role in confirming judges). The bill came on the heels of the Oklahoma Supreme Court’s recognition of a narrow right to abortion and temporary enjoinment of three anti-abortion laws. Alaska and Kansas also saw legislative efforts to gut judicial nominating commissions in a year in which both state judiciaries issued significant decisions protecting abortion rights.footnote2_vr9IRRRMQ9Pv4ciipPYynxiXgKBvKbMYQKFNylO1Siw_ntV37rMes97p2AK H.J.R. 25; KS S.C.R 1616. And following the Arizona Supreme Court’s decision to resurrect the state’s pre–Civil War abortion ban, the Arizona legislature referred a constitutional amendment to the November ballot, which voters ultimately rejected, that would have ended regular retention elections for Arizona justices, appellate judges, and many trial court judges and would have applied retroactively to two justices who upheld the abortion ban and were standing for retention.footnote3_-wETXcCZXHZiJAiWedhJbhRtPpgPSS2eU1fYRofRfc_vRP59OaLI32Q3AZ S.C.R. 1044.

Other state legislatures escalated prior disputes with state judiciaries by changing the judges or courts who hear constitutional challenges to state law or eliminating judgeships held by judges who have ruled against the legislature in high-profile cases. In 2023, Kentucky enacted a law, which the Kentucky Supreme Court struck down last year, that would have allowed litigants to transfer certain constitutional challenges to a different judicial circuit even if the lawsuit was filed in the correct venue. The bill represented the latest in a multi-year effort by Republican elected officials to steer constitutional cases away from trial judges in the state capital, who have ruled against the legislature in major cases. In 2024, the state’s Republican-controlled legislature passed a substantially similar venue-changing bill over the Democratic governor’s veto.footnote4_VoM8TvwXLWGUOZytgxavUlHmuI8XPIwEwp4QVdI7wm4_iW5utxz1VNLz4KY H.B. 804.North Carolina also once again enacted a law granting the legislature the power to appoint additional special superior court judges to hear constitutional challenges to state law and all redistricting cases.footnote5_XYKgZ1DwSMutJBA1MvVNZ88PoSZqO4vqQ43wXdgBM_bXdDltzozsPe5NC S.B. 382. The North Carolina bill adding judgeships also eliminates two superior court judgeships currently held by judges who previously ruled against the legislature in cases concerning gerrymandering and separation of powers.

In 2024, legislators also sought to exert more political influence over state judicial ethics commissions. The Arizona amendment ending retention elections would have also given the legislature two seats on the state’s judicial ethics commission and granted all legislators the authority to require the commission to investigate an allegation that a justice or judge engaged in a pattern of malfeasance with no showing of cause required.footnote6_-wETXcCZXHZiJAiWedhJbhRtPpgPSS2eU1fYRofRfc_fzkPgmDCjNrG6AZ S.C.R. 1044. The latter was particularly concerning as in recent years ethics commissions in other states have opened seemingly politically-motivated investigations into sitting justices after they issued rulings in major cases or spoke out about important public issues impacting the judiciary, such as a lack of diversity. In a troubling development, Louisiana voters narrowly approved a legislatively-proposed constitutional amendment that adds five appointees to the state’s judicial ethics commission, all to be appointed by either the governor or legislature, on a commission that previously operated independently of the political branches.footnote7_pgn-PSevR18cE6xPifoiq74jG2kXUfXf0IN7nC2aIug_mpcSjgheUtT87LA S.B. 177. Proponents of the amendment reportedly hope that the changes will lead the commission to pressure judges to take harsher stances on criminal sentencing.

Finally, in several states, legislatures passed bills that either make it more difficult for courts to enforce judicial orders or empower state officials to ignore certain court orders altogether. Utah enacted a law prohibiting enforcement of certain federal orders issued by officials appointed by the president, with no exceptions for orders issued by federal judges, if the legislature passes a separate resolution determining that a federal order violates state sovereignty.footnote8_m0dJjVUWaGJp6uZUIKKLHQuKvUmsgxPJtSiFj5aQ60_yykW8bHbt1aJ8UT S.B. 57. Wyoming enacted a law that forbids state officials from implementing or enforcing judicial orders that either prohibit certain persons from owning a firearm or require the surrender of a firearm. The law also bars the state and political subdivisions from using state or federal funding to enforce such orders.footnote9_bGbKOcpqHF9gBrFgu6yBUVyQTbx6v87ElnhaDypmRIc_kJKQEHsHZUa39WY S.F. 109. Tennessee similarly enacted a law barring political subdivisions of the state from accepting funding to implement or enforce judicial orders prohibiting a person from owning or requiring the surrender of a firearm.footnote10_AkBCwA3W1cow6WWjgSWzOrc2j0vLJrnivaBERvI8_kQCuTjdch9gk10TN S.B. 2763.

A Brennan Center review of bills considered in 2024 shows that of the 46 legislatures in regular session during 2024, legislators in 20 states introduced at least 49 bills attacking the independence of courts.footnote11_CbeAJe6rjgfEPrzfw2fJJUgL7GdRmFt9mVIZ3QtgBRY_koPnPtASRisu11These 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. Of these bills, 6 were signed into law in 6 states (Kentucky, Louisiana, North Carolina, Tennessee, Utah, and Wyoming).footnote12_b9F3QOv0A09LgGFXGgQ5P8DV1HcV85Bn9Qq34POLcQ_bdUNxMliw4cl12KY H.B. 804; LA S.B. 177; NC S.B. 382; TN S.B. 2763; UT S.B. 57; WY S.F. 109. Our analysis of legislation that targeted the role or independence of state courts in previous years can be found here.

• Twenty-one bills in nine states would have injected more politics into how judges are selected. No bills were enacted, though one constitutional amendment was legislatively referred to the ballot and rejected by voters. (We also counted this bill as an effort to politicize judicial discipline.)
• Three bills in three states would have allowed legislators to exert greater political influence over judicial discipline. One bill was enacted and one bill was legislatively referred to the ballot and rejected by voters.
• Twenty-two bills in 12 states would have either enabled the override of court decisions by state legislators or state officials or made it more difficult for judges to enforce certain court decisions. Three such bills were enacted.
• Two bills in two states were enacted that permit judge- or forum-shopping. (We also counted one of these as a bill eliminating judicial districts.)
• One bill, which was enacted, eliminates judicial districts held by specific judges who have issued rulings against the legislature.

• Two bills in two states would have interfered with judicial decision-making or made it easier to target judges for unpopular decisions. None of the bills were enacted.

  The following is an overview of bills that passed at least one state legislative chamber in 2024, broken down by how they threaten the independence of the judiciary.

Legislatures in nine states introduced 21 bills that would inject more politics into how judges are selected. In states that use independent nominating commissions to appoint judges, legislatures sought to either abolish such bodies or exert greater political influence over them, while states that use elections to select judges saw legislative efforts to change the rules around judicial elections to advantage legislators’ preferred candidates. One bill, a constitutional amendment, was passed by the legislature but subsequently rejected by voters, and another bill passed one legislative chamber.

• A proposed constitutional amendment in Arizona (S.C.R. 1044) would have eliminated regular retention elections for Arizona Supreme Court justices, appellate judges, and some superior court judges. Instead, retention elections would have occurred only in the event of a felony conviction of a judge, a criminal conviction of a judge involving fraud or dishonesty, initiation of bankruptcy proceedings in which the judge is a debtor, foreclosure of a judge’s mortgage, or a finding by the state’s Commission on Judicial Performance Review that a judge has not met judicial performance standards. The bill would have applied retroactively to sitting judges, including to the justices and judges up for retention in 2024. While a single lengthy term can help preserve judicial independence, the proposed amendment came after a successful effort by the state Republican party to add two justices to its state supreme court in 2016, and on the heels of a flip in control of the governor’s office in 2022 with a win by a Democrat. If passed, the amendment would have had the effect of cementing this court-packing maneuver by eliminating the possibility that an anti-retention vote could create new vacancies for the Democratic governor to fill. The amendment made it to the November ballot but was rejected by voters. 
• A proposed constitutional amendment in Oklahoma (S.J.R. 34) would have abolished the state’s judicial nominating commission and authorized the governor to appoint all state supreme court justices, court of criminal appeals judges, and appellate judges subject to the advice and consent of the state senate. The proposal follows years of disputes between the legislature and the state’s high courts over the staying of executions and abortion rights, including the Oklahoma Supreme Court’s 2023 decision finding that the Oklahoma Constitution contains a limited right to abortion. After passing the senate, the bill was amended to give the house a role in confirming nominees, but this version was defeated in the house.

Three bills introduced in three states would allow legislators to exert greater political influence over judicial discipline by changing the structure and powers of judicial ethics bodies, which enforce judicial codes of conduct, granting politicians more control over them, or making it easier to impeach judges for improper reasons. One bill was enacted, and one proposed constitutional amendment was legislatively referred to the ballot but rejected by voters.

• Arizona’s proposed constitutional amendment to end regular retention elections (S.C.R. 1044) would have also created opportunities for legislators to weaponize ethics investigations into judges. The amendment would have allowed the house and senate to each appoint a member to the state’s Commission on Judicial Performance Review “with complete discretion,” potentially permitting legislators themselves to serve as commissioners. The amendment also allowed any legislator, with no showing of cause necessary, to require the commission to investigate an allegation that a judge engaged in a pattern of malfeasance in office. The proposal is consistent with a recent trend in which ethics commissions have opened seemingly politically-motivated investigations into sitting judges without evidence of wrongdoing. The amendment made it to the November ballot but was rejected by voters. 
• Voters approved a legislatively-proposed constitutional amendment in Louisiana (S.B. 177) that changes the structure and powers of the Judiciary Commission of Louisiana, the state’s judicial ethics body responsible for investigating allegations of judicial misconduct and making disciplinary recommendations to the Louisiana Supreme Court. Prior to the amendment’s passage, the commission had nine members, all appointed by the judiciary: three judges selected by the Louisiana Supreme Court, three attorneys selected by the Conference of Court of Appeal Judges, and three citizens selected by the Louisiana District Judges’ Association. The amendment will add five additional members: two appointed by the house, two appointed by the senate, and one appointed by the governor. The amendment passed with 53 percent of the vote.

Legislatures in 12 states introduced 22 bills that would make it harder for courts to enforce certain court decisions. Fourteen of these bills would impede state or federal courts from enforcing gun control laws, and 4 bills would empower legislatures to nullify court orders deemed unconstitutional by the legislature. Three bills were enacted. 

• A Utah law (S.B. 57) permits the legislature to pass concurrent resolutions that would prohibit state and local officials from enforcing federal directives issued by “someone appointed by the president of the United States” if the legislature believes such an order violates state sovereignty. The law makes no exception for local and state officials acting pursuant to federal judicial orders.
• Bills in Wyoming and Tennessee prevent judges from enforcing certain “red-flag” or “extreme risk protection” orders, which are judicial orders pursuant to state laws prohibiting firearm possession by individuals deemed a danger to themselves or others. The Wyoming law (S.F. 109) prohibits the state from implementing or enforcing state or federal judicial orders prohibiting certain Wyoming residents from owning a firearm or requiring the surrender of a firearm. It also forbids the state, including political subdivisions, from using state or federal funding to enforce such orders. The Tennessee law (S.B. 2763) bars political subdivisions from accepting funding to implement or enforce judicial orders prohibiting certain persons from owning or requiring the surrender of a firearm.

Two states enacted two laws that permit judge shopping or help the legislature obtain a more favorable judge or venue in litigation challenging state law on constitutional grounds. 

• A Kentucky law (H.B. 804) permits litigants to transfer certain constitutional challenges to an adjacent judicial circuit even if the lawsuit was originally filed in the correct venue. The bill represents the latest episode in a multi-year effort by Republican legislators to reroute constitutional litigation away from trial judges in the state capital whom legislators have criticized as being too liberal. Last year, the Kentucky Supreme Court deemed the legislature’s most recent venue-changing bill unconstitutional under Kentucky’s constitution. H.B. 804 passed over the veto of the state’s Democratic governor, who called the legislation an unconstitutional power grab. 
• A North Carolina law (S.B. 382), which the Republican-controlled legislature passed over the outgoing Democratic governor’s veto, creates two special superior court judgeships to be appointed by the legislature. Pursuant to a similar law passed last year, the new judges will be authorized to sit on the panels of judges that hear all redistricting cases and facial constitutional challenges to state law. Prior to last year, all special superior court judges were appointed by the governor, rather than the legislature, and could not hear such cases.

In one state, a statute will eliminate judicial districts held by judges who have ruled against the legislature in major cases. 

• The North Carolina law that passed over the governor’s veto (S.B. 382) eliminates two judicial districts held by judges who have ruled against the legislature in major democracy cases. The bill eliminates superior court districts currently held by judges Bryan Collins and L. Todd Burke. In 2017, Burke served on the panel of judges that struck down portions of a law that gave the legislature greater control over appointees to the state election board. In 2019, Collins issued a decision voiding two constitutional amendments because the legislature that passed the amendments was unlawfully racially gerrymandered. The provision eliminating the districts goes into effect in 2029, when both judges would be eligible to stand for an additional term.