A number of state legislatures are proposing measures this year to limit the authority of judges. These measures include ditching long-standing precedents that allow courts to determine the constitutionality of laws and changing the selection process for judges. The tension between the judiciary and other branches of government is intensifying, particularly as President Donald Trump faces numerous legal challenges to his policies. The administration argues that judges, deemed as “judicial activists,” are obstructing the President’s agenda.
William Raftery of the National Center for State Courts noted that the struggle for power between state government branches has existed since the early days of the United States. Lawmakers frequently introduce proposals aimed at curtailing the authority of judges, although many of these proposals do not pass. The impact of these current efforts remains to be seen as most state legislative sessions are ongoing.
Here’s a breakdown of some of the proposed measures:
– **Questioning Judicial Authority:** In Montana, a legislative committee has moved to reject the precedent set by the U.S. Supreme Court in 1803 that allows courts to declare laws unconstitutional. Instead, a bill sponsored by the GOP argues that no single branch should have exclusive power to determine the constitutionality of laws. The measure seeks to challenge recent court decisions that Republican lawmakers disagreed with, such as rulings on abortion restrictions and transgender rights. Similar legislation is being considered in Kentucky, Tennessee, and West Virginia.
– **Changing Judicial Selection:** In Kansas, Republican leaders are pushing to alter the process for selecting Supreme Court justices. Currently, the governor selects a justice from nominees provided by a commission dominated by lawyers, with voters having a say every six years. There is a renewed effort to have voters directly elect justices, as was the case before 1960 and as is done in 22 other states. Advocates argue that this shift would prioritize fundraising skills over legal expertise for potential justices.
– **Limiting Judicial Deference:** An Oklahoma bill aims to prevent judges from deferring to government agencies’ interpretations of laws if the statutes are not clearly defined. This move seeks to enhance judicial scrutiny over regulatory decision-making.
These state-level initiatives underscore an ongoing power struggle between the judiciary and lawmakers, with potential implications for the balance of power within state governments.
The notion of judges determining their roles while simultaneously diminishing the authority of the executive branch is reminiscent of a recent U.S. Supreme Court decision that proponents, including conservatives and business organizations, argue will curb excessive actions by government agencies. A considerable number of states, around 20 in total, have embraced a similar perspective through various means such as legal judgments, legislative acts, and even a constitutional adjustment in Florida, as detailed in an analysis by Ballotpedia. A legislative committee has progressed a bill in Oklahoma to the full Senate for further deliberation. Meanwhile, in Missouri, a lawmaker initially introduced a proposal to remove a judge from office but later withdrew it. Additionally, a legislative leader in Missouri suggested a bill with the intention of dismissing a circuit court judge whose verdicts he disagreed with. However, he has since decided against pursuing this course of action. House Speaker Pro Tem Chad Perkins, a member of the Republican party, shared that his proposed bill to reduce the number of judges in a specific circuit in mid-Missouri from four to three was motivated by the desire to remove Judge Cotton Walker from the bench. Some of Judge Walker’s decisions have led to significant outcomes, such as enabling a referendum on marijuana legalization and prompting a revision of the state’s description of an abortion rights ballot proposition. Perkins informed The Associated Press that the bill is currently on hold due to the high volume of cases in the circuit, making it impractical to eliminate a judgeship at this time. He emphasized his dissatisfaction with Judge Walker’s rulings but deferred the ultimate decision to the voters of Cole County. If Judge Walker chooses to run for reelection, his fate will be decided at the ballot box next year. The information was reported by Mulvihill in Cherry Hill, New Jersey, with contributions from David Lieb, an Associated Press reporter based in Jefferson City, Missouri.
