Legislative Assaults on State Courts — 2022
State lawmakers across the country are considering bills that would make state courts more political or limit their ability to serve as an independent check on the governor or state legislatures.
In 2022, state lawmakers have continued a disturbing trend of introducing legislation that would undermine the role and independence of state courts. New this year, though, is that legislators are introducing these bills in the shadow of a Supreme Court that is poised to remove or weaken major constitutional rights at an unprecedented scale beginning as soon as this summer. Most significantly, in a leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, a majority of justices appear ready to overrule Roe v. Wade, erasing decades of precedent protecting abortion rights under the federal constitution.
A diminished role for federal courts in protecting abortion rights as well as in other arenas, such as redistricting, is putting state courts front and center in some of the country’s most charged political and legal debates. State courts can, and often do, interpret their state constitutions to go further than the federal constitution in recognizing and protecting rights. State supreme courts set binding precedent for over 23,000 lower court judges and have the final word on interpreting state law and constitutions. It is critical that these judges are able to decide cases before them without inappropriate political manipulation or retaliation.
Yet across the country, state courts and the judges that sit on them have become targets. In Ohio, for example, Republican legislators have threatened to impeach the state’s Republican chief justice for a series of decisions striking down their preferred legislative maps as partisan gerrymanders. And days after the Supreme Court’s draft Dobbs opinion was leaked, legislators in Louisiana sought to pass a bill that would have criminalized abortion and subjected any judge in the state who ruled against the law to impeachment or removal. While that bill ultimately failed, Oklahoma’s governor has signed three abortion bans into law this year — two of which are modeled after Texas’s bounty hunter law S.B. 8 and contain provisions that explicitly prohibit courts in the state from hearing lawsuits to stop the enforcement of those laws.
A Brennan Center review of bills already considered in 2022 shows that as of June 10, legislators in at least 25 states introduced at least 73 bills that would politicize or undermine the independence of state courts.* Of these bills, at least four have been signed into law in three states (Iowa, Oklahoma, and Wyoming). An additional 22 bills have advanced in a significant way, either passing favorably out of a committee or subcommittee, receiving a hearing, passing through one house of the legislature, or receiving approval by the legislature to go on the November ballot. (Our analysis of legislation that targeted the role or independence of state courts in previous years can be found here.)
In many of this year’s bills, state lawmakers attempt to insulate their actions from review by courts. Some of these bills would prohibit state officials, including judges, from enforcing certain court decisions, while others would prohibit courts from hearing cases challenging the constitutionality of laws passed by the legislature or subject judges who block certain laws to impeachment or removal. And though the legislative sessions of 36 states have come to an end, many states have announced plans to call special sessions should Roe fall. In some states, this could open the door for more bills like Louisiana’s and Oklahoma’s to become law.
In addition to these measures, bills passed last year will be on the ballot this November in West Virginia and potentially Montana. The West Virginia measure would cut loose future impeachment proceedings from judicial review. And the Montana measure, which is currently subject to litigation, would open the door to gerrymandering of the state’s supreme court.
As of June 10, legislators in at least 25 states have considered at least 73 bills targeting state courts.
Thirty-eight bills in 16 states would either enable the override of court decisions or prohibit state officials, including judges, from enforcing particular laws or court decisions. Three such bills have been enacted so far.
Nine bills in six states would put pressure or restrictions on judicial decision-making, take away courts’ authority over procedural rules, or reduce judicial branch resources in response to decisions that displeased the legislature. One such bill has been referred to the November ballot.
One bill in one state would change the judges or courts that hear high-profile cases against the government.
Sixteen bills in eight states would inject more politics into how judges are selected. One such bill has been enacted so far.
Two bills in one state would shorten judicial term lengths, subjecting judges to more frequent political pressures.
Seven bills in seven states would allow more guns in courthouses, even if courts themselves wanted to prohibit weapons.
In addition, two legislatively referred ballot initiatives in two states, passed in 2021 and appearing on the ballot in 2022, would take away courts’ authority over impeachment proceedings or gerrymander existing courts.
The following is an overview of bills introduced at the state level as of June 10, broken down by how they might weaken the independence or power of the judiciary.
*These bills were identified by the Brennan Center through CQ FiscalNote (with support from the Piper Fund) and media reports. One bill was also identified using the National Center for State Courts’ Gavel to Gavel database. Our analysis includes bills introduced in 2022 as well as any bill introduced in 2021 as part of the same legislative session, provided the bill has advanced in some way in 2022. If a bill’s description does not indicate whether the bill has progressed, that is because the relevant legislative session for that bill is still ongoing.
Limits to the Enforcement of Court Rulings
Proposals in 16 states would either enable the override of court decisions or prohibit state officials, including judges, from enforcing particular laws or court decisions, especially those related to abortion or guns. In all, there were 16 abortion-related bills introduced across 11 states — two of which were enacted in one state.
Bills Limiting the Enforcement of Laws or Court Decisions Related to Abortion
Bills in Alabama (H.B. 295), Arkansas (H.B. 1118), Missouri (H.B. 1987), and Oklahoma (H.B. 4327, S.B. 1503) would enact abortion bans with bounty hunter enforcement schemes like Texas’s S.B. 8 and prohibit courts in those states from considering claims seeking to stop enforcement of those laws. H.B. 4327 and S.B. 1503 were signed into law by Oklahoma’s governor. The remaining bills all failed to move before the end of the legislative session.
In Alaska, a bill (H.B. 206) would have banned abortion and prohibited state or municipal agencies from implementing “a federal court order that is applied to . . . infringe on a person’s right to life” under the Fifth and Fourteenth Amendments of the U.S. Constitution. H.B. 206 is a carryover bill that failed to move before the end of last year’s legislative session. It was scheduled for hearing in the state house days after the Supreme Court’s draft decision overturning Roe v. Wade was leaked but again failed to move before the end of the legislative session.
Bills with similar language in Colorado (H.B. 22–1047), Kansas (H.B. 2746), Maryland (S.B. 504), and Missouri (S.B. 699) would have criminalized abortion and deemed any contrary state or federal court decisions as “void” and unenforceable. Similar bills were introduced in Arizona, Missouri, and Texas last year. S.B. 504 received a hearing in the Maryland Senate but failed to otherwise move before the end of the legislative session. S.B. 699 received a hearing in the Missouri Senate but failed to otherwise move before the end of the legislative session. The remaining bills all failed to move before the end of the legislative session.
A similar bill in Indiana (H.B. 1282) would have banned abortion and deemed any contrary court decision as “nonauthoritative, void, and of no force.” It would have also subjected federal officials attempting to enforce such decisions to arrest by Indiana law enforcement. Similar bills have been introduced in Indiana and Missouri in recent years. H.B. 1282 failed to move before the end of the legislative session.
A bill in Idaho (H. 460) would have criminalized abortion and required all political subdivisions of the state, including courts, to enforce the law regardless of “any contrary or conflicting federal statutes, regulations, executive orders, or court decisions.” Similar bills were introduced last year in Idaho, Oklahoma, and Texas. H. 460 failed to move before the end of the legislative session.
Bills with similar language in Colorado (H.B. 22–1079), Louisiana (H.B. 813), and Oklahoma (S.B. 1372) would have required all political subdivisions of those states to enforce prohibitions and other restrictions on abortion without regard to Roe or any other “contrary or conflicting federal statute, regulation, treaty, executive order or court ruling” and subjected any judge in those states who “purport[ed] to enjoin, stay, overrule, or void” any provision of those laws to impeachment or removal. A similar bill was introduced in South Carolina last year. H.B. 813 was voted out of committee but was later voted down in the Louisiana House. The remaining bills all failed to move before the end of the legislative session.
In Louisiana, another bill (H.B. 344), which shares the same sponsor as H.B. 813, would have required all political subdivisions of the state to enforce prohibitions against abortion without regard to Roe and prohibited state agencies or officials from complying with contrary court orders. Similar bills were introduced in Arizona and Texas last year. H.B. 344 was scheduled for hearing in the state house, but the bill’s sponsor resigned from the committee after his other anti-abortion bill (H.B. 813) was voted down on the house floor.
Bills Limiting the Enforcement of Laws or Court Decisions Related to Guns
Bills with nearly identical language in Alabama (H.B. 13/H.B. 14), Louisiana (H.B. 43), and West Virginia (H.B. 2159) would have deemed all or certain federal acts, including court orders, that “infringe on the people’s right to keep and bear arms” as “void” in those states. Similar bills were introduced last year in several states including Florida, Georgia, Iowa, Minnesota, North Carolina, and West Virginia. H.B. 43 passed the Louisiana House and was voted out of committee in the state senate but failed to otherwise move before the end of the legislative session. The remaining bills all failed to move before the end of the legislative session.
Bills with similar language in Alabama (H.B. 7), Indiana (H.B. 1371), Iowa (H.F. 2303, S.F. 2002), Mississippi(H.B. 253, H.B. 254, H.B. 1114, H.B. 1418, S.B. 2395), South Dakota (H.B. 1052), and Wyoming (H.B. 133/S.F. 87) would have likewise deemed all or certain federal acts, such as federal laws or executive orders, that “infringe on the people’s right to keep and bear arms” as “void” or “invalid” and required courts in those states to “protect the rights of law-abiding citizens to keep and bear arms.” Similar bills were introduced last year in Arkansas, Missouri, and Ohio. S.F. 2002 was recommended for passage by a subcommittee of the Iowa Senate but failed to otherwise move before the end of the legislative session. H.B. 1418 passed the Mississippi House but failed to otherwise move before the end of the legislative session. H.B. 1052 was voted out of committee in the South Dakota House but was voted down on the floor of the state house. The remaining bills all failed to move before the end of the legislative session.
Bills in Oklahoma (S.B. 1199, S.B. 1335) would have authorized county sheriffs to detain or arrest federal employees who attempt to enforce certain federal acts, including court orders, that are contrary to the state’s firearm preemption law. Both bills failed to move before the end of the legislative session.
In Wyoming, a bill (S.F. 102) would have prohibited state and local enforcement of any federal “act, law, treaty, judicial or executive order, rule or regulation” that “infringes on or impedes the free exercise of individual rights guaranteed under the Second Amendment to the Constitution of the United States.” S.F. 102 was signed into law by the governor with an amendment prohibiting state and local enforcement of any “unconstitutional [federal] act, law, treaty, executive order, rule or regulation” that “infringes on or impedes the free exercise of individual rights guaranteed under the Second Amendment to the Constitution of the United States.”
In Oklahoma, a bill (S.B. 1330) would have deemed “[a]ny unlawful federal statute, rule, or executive order, federal or state judicial order, or judicial finding” that would temporarily restrict access to firearms for individuals determined by a court to be a threat to themselves or others as “null, void, unenforceable, and of no effect” in the state. Similar bills have been introduced in Alabama and South Dakota in recent years. S.B. 1330 failed to move before the end of the legislative session.
Bills Limiting the Enforcement of Other Laws or Court Decisions
In Iowa, a bill (H.F. 2423) would have allowed the legislature to nullify presidential executive orders and federal court decisions by a majority vote. H.F. 2423 failed to move before the end of the legislative session.
Bills in Oklahoma (H.B. 2981, H.B. 3247) would have deemed “[a]ny federal statute, rule or executive order, federal or state judicial order or judicial findings that would have the effect of forcing a vaccination mandate as a condition of employment against or upon a citizen of Oklahoma, which would infringe upon a citizen’s Constitutionally-protected rights” as “null, void, unenforceable and of no effect” in the state. Both bills failed to move before the end of the legislative session.
Another bill in Oklahoma (H.B. 2988) would have deemed “[a]ny federal statute, rule, or executive order, federal or state judicial order or judicial findings that would have the effect of forcing the teaching of the 1619 Project” or slavery in America as “null, void, unenforceable and of no effect” in the state. This bill is part of the national trend of bills introduced in Republican-controlled states to ban schools from teaching the 1619 Project, an initiative by the New York Times that reframes the history of America through the lens of slavery. H.B. 2988 failed to move before the end of the legislative session.
Interfering with Judicial Decision-Making
Six states are considering legislation that would limit judges’ decision-making powers, limit judges’ control over procedural rules, or make it easier to target judges for unpopular decisions. And in one state, a proposed constitutional amendment, passed by the state legislature in 2021 and appearing on the November 2022 ballot, would take away state courts’ authority over impeachment proceedings.
In Kentucky, a bill (H.B. 495) would have prohibited the “state government” from taking any “discriminatory action,” such as levying a fine or entering an injunction, against any person or religious organization who discriminated against an individual on the basis of sexual orientation or gender identity in the name of religious freedom. Similar bills were introduced in Colorado and Texas in 2019. H.B. 495 failed to move before the end of the legislative session.
In Missouri, a bill (H.B. 2360/S.B. 1044) would have prohibited state courts from imposing or enforcing moratoriums on eviction proceedings “unless specifically authorized by the laws of this state.” This bill was introduced after circuit courts in Missouri’s two largest cities issued local eviction moratoriums in 2020 to protect renters negatively affected by the Covid-19 pandemic. S.B. 1004 was voted out of committee in the state senate but failed to otherwise move before the end of the legislative session.
Another bill in Missouri (H.B. 1608/S.B. 812) would have prohibited state courts from rewriting false or misleading ballot language written by the legislature. A similar bill, along with a bill that would have prohibited state courts from hearing challenges to ballot language written by the legislature, was introduced by Republican lawmakers last year after two courts rewrote the ballot language for a legislatively proposed constitutional amendment to undo voter-approved redistricting reforms. H.B. 1608 was voted out of two committees in the state house but failed to otherwise move before the end of the legislative session. S.B. 812 passed the state senate and was voted out of two committees in the state house but failed to otherwise move before the end of the legislative session.
In Ohio, the legislature voted to put a proposed constitutional amendment (H.J.R. 2/S.J.R. 5) on the ballot this November that would eliminate the state constitution’s requirement that the procedures for establishing the amount and conditions of bail be established by the state’s judiciary. It would also require courts to consider “public safety, including the seriousness of the offense, and any other factor the general assembly may prescribe” when determining the amount of bail. H.J.R. 2 was introduced after the Ohio Supreme Court issued a decision this year that held “public safety is not a consideration with respect to the financial conditions of bail” and new rules in 2021 to reform bail in the state.
A proposed constitutional amendment in Pennsylvania (H.B. 1910) would limit the state supreme court’s rulemaking authority and transfer that authority to the legislature. Similar proposals have been introduced in Arizona, Arkansas, and West Virginia in recent years. H.B. 1910 was voted out of committee in the state house.
Another proposed amendment in Pennsylvania (H.B. 2207) would replace the state’s commission for drawing legislative districts with a “citizens’ commission” made up of 11 members, the majority of whom would be appointed by legislative leadership. It would also eliminate the authority of the state’s supreme court to redraw legislative maps in the event the commission failed to agree on new maps. When asked about the proposed amendment, the Republican majority leader of the state house cited frustration with the role of the state’s courts in redistricting disputes, saying, “Are the people getting their voice heard, or are the courts?” H.B. 2207 was voted out of committee in the state house.
In New Hampshire, a proposed constitutional amendment (C.A.C.R. 27) would have allowed voters to recall and remove state court judges by petition. A similar bill in New York (S. 6759) would authorize the recall of state legislators and trial court judges. Judicial recall provisions increase the potential for public retaliation against judges for unpopular decisions and have recently been deployed against judges viewed as being too lenient in criminal cases. C.A.C.R. 27 received a hearing but was voted down in the New Hampshire House.
In West Virginia, voters will decide in November whether they should adopt a legislatively referred constitutional amendment (H.J.R. 2) that would prohibit courts in the state from intervening in impeachment proceedings and exempt any judgment issued by the state senate after an impeachment trial from judicial review. This proposed amendment was introduced in response to a 2018 decision by the state’s supreme court that stopped the legislature’s impeachment of three sitting justices for their alleged abuse of state funds because the proceedings were constitutionally and procedurally flawed. H.J.R. 2 was referred to the November ballot by the legislature last year.
Reduce or Control Court Resources
In one state, a bill would significantly reduce judicial branch resources in retaliation for the state high court’s rulings in a redistricting case.
In Ohio, where an impasse over new maps for state legislative districts will require the state to hold two separate primaries, a bill (H.B. 620) would cut the state supreme court’s budget by whatever it costs to hold the separate primary. H.B. 620 was introduced by a Republican lawmaker after the court ordered the state’s Republican-controlled redistricting commission to submit a fourth set of legislative maps because its three previous iterations violated the state constitution’s partisan fairness provisions. The court’s rulings related to the state’s new maps have also prompted calls from state Republicans for the court’s Republican chief justice to be impeached.
Judge-Shopping for Partisan Advantage
In one state, a bill would alter methods for assigning cases in an apparent effort to obtain a more favorable venue for challenges to the redistricting process.
In Alabama, a bill (S.B. 190) would have required lawsuits challenging the constitutionality of statewide redistricting plans to be heard by a three-judge panel made up of sitting or retired state court judges or justices chosen by the state’s chief justice. Currently, such lawsuits must be filed in the Circuit Court of Montgomery County, home to the state’s capital, and the majority of judges on that court are Democrats. S.B. 190 passed the state senate with an amendment requiring the three-judge panel to be made up of the judge before whom the case was filed and two circuit court judges from the geographic jurisdictions of the Northern District of Alabama and the Southern District of Alabama. The bill was voted out of committee in the state house but failed to otherwise move before the end of the legislative session.
Gerrymandering or Creating New Courts
In one state, a legislatively referred state statute, passed by the state legislature in 2021 and currently subject to litigation, would gerrymander the state’s supreme court in response to the perception that the current court is insufficiently supportive of outcomes favored by the legislature.
In Montana, voters may decide in November whether they should adopt a legislatively referred state statute (H.B. 325) that would require the state’s supreme court justices, who currently run in statewide elections, to run in districts. While district-based judicial elections aren’t always bad policy, they can open the door to judicial gerrymandering and other types of political gamesmanship. H.B. 325 was referred to the November ballot by the legislature last year. It was introduced by a Republican lawmaker with ties to a conservative group that has spent heavily in recent state supreme court elections. It is also similar to a referendum that was struck down as unconstitutional by the state’s supreme court in 2012 due to a requirement that judicial candidates live in their district (H.B. 325 omits the residency requirement). Earlier this year, H.B. 325 was blocked by a state trial court judge from going on the ballot in November, but the state has since filed an appeal of that decision to Montana’s supreme court.
Changes to Judicial Selection
Eight states are considering bills that would change how judges are selected, making the process more partisan or political. States use several different methods to select judges. Many use independent judicial nominating commissions to vet and recommend judicial candidates as a way to help insulate judges from political and partisan pressures during the selection process. But a majority of bills considered in 2022 would either weaken states’ nominating commissions by giving the governor more control over them or eliminate them altogether. Others would give political actors more control over judicial selection in other ways or alter the selection process for a perceived partisan advantage.
In Alaska, a bill (H.B. 339) would have, among other things, subjected court of appeals judges and district judges to approval or rejection by a majority of the legislature two years after the judge’s appointment and then again every two years. Currently, after a court of appeals judge or district judge has served for at least three years, the judge stands unopposed in an up-or-down retention vote at the state’s next general election, and if retained, serves an eight-year term in the case of a court of appeals judge or a six-year term in the case of a district judge. H.B. 339 would have also required the governor’s judicial nominees, who are currently vetted by the state’s judicial council, to be confirmed by a majority of the members of the legislature in joint session. Over the years, Alaska’s supreme court has faced continued attacks from conservative officials because of decisions related to abortion, ranging from legislation to weaken or eliminate the state’s judicial council to an attempt by the governor to veto $335,000 from the court’s budget. H.B. 339 failed to move before the end of the legislative session.
In Idaho, Republican legislators introduced three bills that would have given the state’s Republican governor more control over the state’s seven-member judicial council, which vets and recommends nominees to the governor for vacancies on the state’s trial and appellate courts. Currently, Idaho’s judicial council is made up of the state’s chief justice, who serves as the chairman, a district court judge and two lawyers appointed by the state bar with the consent of the state senate, and three nonlawyers appointed by the governor with the consent of the state senate. The first bill (H. 600) and second bill (S. 1382) would have, among other things, required the council’s attorney members to be appointed by the governor from a list of candidates recommended by the state bar and allowed the governor to reject a slate of the council’s nominees for a judicial vacancy and ask for another list. The third bill (H. 782) would have expanded the council to 11 members and increased the number of members chosen by the governor. It would have also allowed the governor to reject a slate of the council’s nominees and request an entirely new list for a judicial vacancy. These bills were reportedly introduced because some Republican legislators were unhappy with recent court decisions, including an Idaho Supreme Court ruling last year that blocked a new law that would have made it harder to put initiatives on the ballot. H. 782 was vetoed by the governor, and the remaining bills all failed to move before the end of the legislative session.
In Indiana, a proposed constitutional amendment (S.J.R. 15) would have given partisan legislators more influence over the seven-member commission the state uses to nominate appellate court judges by replacing two of the three lawyers chosen by the state bar with nonlawyers chosen by the house speaker and senate president. Currently, the commission is equally divided between lawyers chosen by the state bar and nonlawyers chosen by the governor, and it is chaired by the state’s chief justice or their designee. S.J.R. 15 failed to move before the end of the legislative session.
In Iowa, the Republican-controlled legislature passed a bill (H.S.B. 636/H.F. 2481) allowing the governor to pick district associate judges, associate juvenile judges, and associate probate judges. Previously, those judges were appointed by district judges from nominees put forward by each of the state’s 99 counties’ magistrate appointing commissions. The bill also requires the state’s statewide appellate court commission to put forth five nominees, as opposed to three, for vacant court of appeals positions. H.F. 2481 was signed into law by the state’s Republican governor with an amendment allowing judges in contiguous counties to be considered for a judicial opening so long as they move into the new district if chosen.
Another bill in Iowa (S.F. 2014/S.F. 2132) would increase the number of nonlawyers appointed by the governor to each of the state’s 11-member district judicial nominating commissions from five to six. It would also remove the district’s most senior judge, who serves as the eleventh member and chairperson, from the commission. In 2019, Iowa’s Republican-controlled legislature passed a bill giving the state’s Republican governor authority to appoint a majority of the members on the state’s statewide appellate court commission. S.F. 2132 passed the state senate but failed to otherwise move before the end of the legislative session.
In Maryland, a proposed constitutional amendment (S.B. 24) would have given the state senate the power to reject the governor’s appointment for chief judge of the Maryland Court of Appeals, the state’s highest court. Currently, six of the seven judges on the high court were appointed by the state’s Republican governor, and while senate approval is required for all seven judges, an additional vote is not required for the governor to elevate a sitting judge on the court to chief judge. S.B. 24 was withdrawn by the bill’s Democratic sponsor.
A proposed constitutional amendment in Missouri (S.J.R. 30) would have removed all state bar–appointed members on the state’s nominating commissions, replacing them with nonlawyer members appointed by the governor. Republicans currently hold a two-thirds supermajority in the legislature and have accused the state’s supreme court of going “rogue.” S.J.R. 30 received a hearing in the Missouri House but failed to otherwise move before the end of the legislative session.
In Kansas, a proposed constitutional amendment (S.C.R. 1621) would have given the governor the power to directly fill state supreme court vacancies, subject to the state senate’s advice and consent, without vetting by the state’s supreme court nominating commission. Another proposed amendment (S.C.R. 1622) would have replaced the state’s judicial nominating commission for state supreme court justices with partisan elections. Republican legislators have considered similar proposals in the past, and this year’s proposals were introduced as the Kansas Supreme Court was expected to hear lawsuits challenging the legality of the state’s new Republican-drawn congressional maps. (A majority of the court ultimately held the new map does not violate the state’s constitution.) S.C.R. 1621 was voted out of two committees in the state senate but was voted down on the floor. S.C.R. 1622 was voted out of committee in the state senate but failed to otherwise move before the end of the legislative session.
In Maryland, a bill (H.B. 306) would have replaced the state’s judicial nominating commission for circuit court judges with nonpartisan elections. H.B. 306 received a hearing in the Maryland House but failed to otherwise move before the end of the legislative session.
In Missouri, a proposed constitutional amendment (H.J.R. 78) would have eliminated the state’s judicial nominating commissions, giving the governor the power to directly appoint supreme court, court of appeals, and some circuit court judges, subject to confirmation by two-thirds vote of the state senate. H.J.R. 78 failed to move before the end of the legislative session.
In Oklahoma, a proposed constitutional amendment (S.J.R. 28) would have abolished the state’s judicial nominating commission, giving the governor the power to directly appoint state supreme court justices and court of criminal appeal judges, subject to confirmation by the state senate. In recent years, Republican legislators have clashed with Oklahoma’s supreme court on a range of decisions, from the staying of executions to the striking down of restrictions on abortion. S.J.R. 28 failed to move before the end of the legislative session.
Another proposed amendment in Oklahoma (S.J.R. 43) would have similarly abolished the state’s judicial nominating commission, giving the governor the power to directly appoint state supreme court justices, court of criminal appeals judges, and court of civil appeal judges, subject to state senate confirmation. The intent of S.J.R. 43, according to the senate president, was to “give the governor more appointments to put more anti-abortion justices on the state Supreme Court.” S.J.R. 43 passed both chambers of the legislature and was substituted in a conference committee with a proposed constitutional amendment that would have replaced the state’s nominating commission with an 18-member commission made up of the senate president, the house speaker, seven state senators, and nine state representatives. The substitute version of S.J.R. 43 did not have enough votes to advance out of conference committee.
In Oklahoma, a bill (S.B. 1832) would have required sitting appellate and district court judges standing for retention elections to appear on the ballot with party labels, the name of the governor who appointed them, and the date of their appointment, if applicable. Currently, retention elections are nonpartisan. Four of the nine sitting justices on the state’s highest civil court were appointed by a Democratic governor, and one of the four sitting judges on the state’s highest criminal court was appointed by a Democratic governor. Republican legislators introduced a similar proposal in 2018. S.B. 1832 failed to move before the end of the legislative session.
Altering Judicial Term Lengths and Limits
One state, New Jersey, is considering proposals that would alter judicial term lengths in ways that would make state supreme court justices more dependent on the legislature or voters for their job security. Currently, justices are appointed by the governor for an initial term of seven years with the state senate’s advice and consent and may be reappointed for tenure (i.e., a term lasting until the justice reaches the state’s mandatory retirement age of 70) via the same process.
In New Jersey, a proposed constitutional amendment (A.C.R. 55) would reduce the initial term of appointed justices from seven to five years and also require the governor’s reappointments for tenure to be approved by voters (in addition to the state senate). A similar proposal was introduced in 2020.
Another proposed amendment in New Jersey (S.C.R. 101) would reduce the initial terms of appointed justices from seven to four years and abolish tenure. Under the amendment, any justice wishing to serve until the state’s mandatory retirement age, including current justices on the court who have attained tenure, would be required to stand in a retention election every four years. The sponsor’s statement for S.C.R. 101 refers to New Jersey’s supreme court as having a “decades-old reputation for being a very activist court” and notes the court’s decisions on education policy and affordable housing as examples of such judicial activism. A similar proposal was introduced in 2020.
Allowing Firearms in Court
Courts continued to be pulled into broader efforts to empower gun owners to carry firearms in public spaces.
Bills in Alabama (S.B. 12), Georgia (S.B. 277), Kentucky (H.B. 689), Mississippi (H.B. 597), South Carolina (H. 4968), Virginia (S.B. 61), and West Virginia (H.B. 3000) would have required courts to allow attorneys, prosecutors, judges, retired judges, or others to carry a firearm or other weapons like stun guns into a courthouse even if that court had a rule prohibiting weapons. S.B. 277 passed the Georgia Senate but failed to otherwise move before the end of the legislative session. S.B. 61 was voted down by a committee of the Virginia Senate. The remaining bills all failed to move before the end of the legislative session.
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