State legislatures’ assaults on the courts

Courts often make decisions that are politically unpopular. But in our constitutional democracy, there are appropriate and inappropriate, legitimate and illegitimate, productive and unproductive ways to respond to such decisions.

attacking judges personally for their interpretations of the law.

proposing to bar courts from deciding specific types of cases in the future.

Illegitimate: Legitimate: Productive: Inappropriate:

making a reasoned legal argument as to why one disagrees with a judge’s interpretation.

Appropriate:

endeavoring to amend a law so that it passes legal or constitutional muster.

basing the selection of judges on perceptions of how they might rule on hot-button issues.

selecting judges who possess integrity, impartiality and intelligence.

Sadly, some state legislatures have demonstrated a willingness to ignore separation-of-powers doctrines as they respond to court rulings that conflict with their political agendas. Around the country, state lawmakers have proposed measures that would strip courts of the power to decide certain classes of cases, empower states to defy federal court rulings, or allow lawmakers to overturn state courts’ constitutional interpretations.

Unproductive:

Seem outlandish? We think so, too, but proposals such as these are under consideration in several Western states, including Arizona, Idaho, Texas, Washington and Wyoming.

In Arizona (as well as Wyoming), one such bill has already been approved by one chamber of the Legislature. These proposals are jarring to those who believe in the separation of powers and the obligation of courts to resolve disputes in constitutional cases.

This legislative session, the Arizona House of Representatives approved HB 2097, which thankfully stalled in the Senate. Were it to become law, the state Legislature could prevent any state resource from being used to implement or administer a federal court ruling or federal action if elected politicians believe the ruling or action violates the U.S. Constitution.

This provision targets the constitutional authority of both state and federal courts and gives politicians, not judges, the authority to decide what is constitutional. It could alter the system of checks and balances that the framers of the Constitution envisioned.

As the Supreme Court of the United States has confirmed time and time again, interpreting the Constitution is emphatically the responsibility of the courts.

The Arizona bill is not the most extreme example of court-curbing legislation. In Washington state, HB 1072 would allow state legislators by majority vote to override appellate court decisions that strike laws as violating the state Constitution.

According to a recent report from the Brennan Center for Justice, in the 2017 legislative session, 41 measures have been proposed in 15 states that are intended to “control the ways by which judges reach the bench, to unseat judges currently on courts, and generally to restrict courts’ jurisdiction and power.”

We the members of the O’Connor Advisory Committee at IAALS — the Institute for the Advancement of the American Legal System — believe legislative proposals that interfere with the independence of the judiciary threaten our democracy.

We work to ensure a highly qualified and impartial judiciary that is publicly accountable and inspires trust and confidence, and whose role is not undermined by political influences. Only a few of these proposals have passed, but the frequency with which they are being proposed raises grave concerns.

We must protect the ability of all judges to make fair and final rulings. We strongly urge legislators to resist the temptation to undermine the constitutional structures of their state governmental systems.

America’s system of checks and balances depends on it.

Meryl Justin Chertoff is executive director of the Justice and Society Program at the Aspen Institute; Rebecca Love Kourlis is executive director of the Institute for the Advancement of the American Legal System; and Ruth V. McGregor is a retired chief justice of the Arizona Supreme Court. Share your thoughts at rebecca.kourlis@du.edu.