May 9, 2017

Private: From the White House to State Houses, Powerful Forces Target Courts

Brennan Center for Justice, David Lyle

by David Lyle

President Donald Trump has received a lot of attention – and widespread condemnation – for his attacks on federal judges. But as Assaults on the Courts: A Legislative Roundup, a new report by the Brennan Center for Justice, makes clear, Trump’s conservative allies in the states have prosecuted a far-reaching campaign to undermine state courts, strip them of their constitutionally-designated powers and deny people the rights and protections the courts are supposed to protect. That these attacks on fair and impartial courts have received so much less attention than Trump’s judge-bashing tweets makes them all the more dangerous.

Attacks on state courts are especially troubling because these courts are the only judicial bodies most American will ever encounter. State courts handle 95 percent of the nation’s judicial business, and decide cases involving vitally important issues ranging from voting rights to criminal justice to reproductive freedom and environmental protections. As a result, powerful conservative interests have flooded state court elections with money over the past decade. As a series of ACS-sponsored studies have shown, this spending undermines justice in our courts.

The Assaults on the Courts study documents the new fronts conservative interests have opened up in their war on the courts in the form of legislative actions that strips courts of their powers or the ability to do their jobs. It finds that:

 This year, at least 41 bills in 15 states have targeted state courts, including efforts to control the ways by which judges reach the bench, to unseat judges currently on courts and generally to restrict courts’ jurisdiction and power. While lawmakers have employed similar tactics in the past, one new trend is a group of bills that would allow state legislatures to override or refuse to enforce court decisions, potentially undermining the role of the courts in our constitutional system. So far this year, nine such bills have been introduced in seven states.

Many bills reflect apparent attempts to increase political influence over the courts, entrench partisan interests, or respond to unpopular judicial rulings. They also align with broader trends toward the heightened politicization of state courts, raising concerns that it will become increasingly difficult for judges to put aside partisan and ideological preferences when deciding cases. Unfortunately, many of these measures have had political traction: bills targeting the courts have passed in Arkansas, Georgia, Indiana, and North Carolina. In Arizona, Florida, Illinois, and Oklahoma bills have been voted out of a chamber of the legislature.

Legislative attacks on courts have taken two forms: direct stripping of judicial powers and ostensible procedural “reforms” that seem likely to be inspired by partisanship or a desire to weaken courts. With respect to the former, overt group of attacks the report notes the following:

In at least seven states, bills have been introduced that would allow legislatures to overrule or refuse to enforce court decisions. These bills come in the context of rising tensions between state legislatures and courts in many states, often in response to unpopular court decisions in areas such as school funding and LGBT rights. In support of a bill in Florida, one lawmaker wrote: “It is my concerted view that such provisions, if enacted by the people would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas.” Some of these bills apply to state court rulings, while others purport to give states the power to overrule federal courts. During the 2011-12 biennium, legislators in New Hampshire, Oklahoma, and Tennessee made a similar push to bar judicial review of acts passed by the state legislature, but those measures were ultimately unsuccessful.

Indirect attacks on courts, including changes to judicial selection systems, judicial term limits, changes to sizes of courts and tampering with court procedures have also been common over the past year.

Assaults on the Courts is a wakeup call that serious efforts to undermine courts have gained considerable political traction in a number of states. If advocates for civil and human rights do not stand up for fair and impartial courts, we may find all to soon that that the courts no longer have the ability to stand up for us.