American democracy relies on a careful balance—legislators pass laws, governors or presidents decide whether or not to sign them, and courts ensure that, whatever the outcome of that legislative process, politicians don’t overstep their authority or encroach on individuals’ rights.
Key to this balance is an understanding that, no matter how much a politician disagrees with a court ruling, they respect judges’ independence and don’t try to undermine the public’s faith in the judicial branch. President Trump bucked that norm many times in 2017, repeatedly attacking the “so-called” judges who ruled against his policies. Now state legislators want to follow his lead.
In just the last month, legislators in Pennsylvania have boldly (and possibly illegally) refused to comply with a court order, and asked their colleagues to kick five sitting justices, all Democrats, off the Pennsylvania Supreme Court—because, the high court ruled that the state’s Republican-drawn congressional maps are an illegal partisan gerrymander, and must be redrawn.
The impeachment demand is shocking. But in a new report, the Brennan Center for Justice found that state legislators across the country have launched a concerted assault on the authority and independence of American courts. So far in 2018 alone, legislators in 14 states are considering at least 42 bills that range from giving the legislature more control over the selection of judges, to exerting political or financial pressures on judges, to simply giving the legislature the power to override court decisions. Many of these proposals are legally tenuous. Almost all of the plans, if enacted, would have grave consequences for the unique and vital role of the courts—democracy’s only independent check on the political branches’ excesses.
A proposal in Washington state, where justices run in nonpartisan elections that have attracted big spending in the past, would require the government’s financial analysts to publish estimates of how much state supreme court decisions will cost taxpayers. It’s easy to imagine these estimates being used against a judge in a future contest. That jurist would feel pressured to consider not just the law when deciding cases, but how an opinion will look to an accountant. This bill also seems to be retaliation for an earlier Washington Supreme Court ruling, which has resulted in long-running litigation, that the state’s education system is underfunded.
An effort by North Carolina’s Republican legislative supermajority to gain a partisan advantage in the courts began in earnest after the party lost the governorship and a state supreme court majority in 2016. Numerous proposals would give legislators more power in picking judges, gerrymander judicial districts (even though North Carolina’s state legislative and congressional maps, drawn by the legislature, have already been deemed unconstitutional by courts), and put more undesirable political pressure on judges. A supporter of one bill to cut judicial terms to two years, said of judges, “if you’re going to act like a legislator, perhaps you should run like one.”
In Iowa, a fight between legislators and the state’s chief justice over whether guns should be allowed in courthouses has led to proposals to cut judges’ salary by 85 percent, and to force the judiciary to pay rent to the state if judges refuse to allow people to carry weapons into certain public spaces. Another Iowa legislator critical of the state court introduced a bill to increase the number of justices required to find a state law unconstitutional.
It’s no wonder that today, when state lawmakers lose a court fight they feel entitled to demand every judge who ruled against them be kicked off the bench, since many of their colleagues across the country are boldly asserting their dominance vis-à-vis the court. Add to that unsavory battle, a president who attacks judges, courts, and rulings he does not like, and state lawmakers soon become major actors in a political fight to undo the system of checks and balances.
But after this political moment has come and gone, what will be left of American democracy? Many of the worst excesses of this hyper-partisan age can be quickly reversed. But eroding the carefully weighted checks and balances that govern how the three branches of government interact with each other is far more dangerous. Once the door is open to political control over the courts, it’s unlikely politicians in either party will be eager to roll back their new powers—even if idealism, rather than cynicism, is their motivation.
It’s time for legislators in Pennsylvania and elsewhere to take the long view of democracy. As Chief Justice Rehnquist once said, “there is a wrong way and right way to go about putting a popular imprint on the judiciary.” State lawmakers who insist on impeaching judges and crafting partisan laws are headed in the wrong direction.