Measures in several state legislatures this year have proposed new approaches to weaken the power of judges. One such measure would abandon the long-standing precedent that courts can determine the constitutionality of laws, while another aims to change the selection process for judges.
The tension between the courts and other branches of government is not a new phenomenon but is currently escalating. This surge comes amidst numerous lawsuits challenging President Donald Trump's policies, with his administration arguing that judges, acting as 'judicial activists,' are impeding his agenda.
According to William Raftery, an analyst at the National Center for State Courts, the struggle for power between branches of state government has existed since the early years of the U.S. Lawmakers frequently propose measures to diminish the authority of judges, although most are not enacted.
The outcome of these efforts remains uncertain until the conclusion of most states' legislative sessions in a few months. Here is an overview of some of the measures being considered:
Who can decide what's constitutional?
In Montana, a legislative committee has voted to reject the concept established by the U.S. Supreme Court in 1803 that courts have the authority to find laws unconstitutional. The proposed measure asserts that no single branch should have exclusive power to determine the constitutionality of laws, challenging the traditional understanding of the court's role.
In Kansas, GOP leaders are seeking to alter the selection process for state Supreme Court justices due to dissatisfaction with court rulings on various issues. They aim to shift from the current system, where the governor selects a justice from nominees chosen by a lawyer-controlled commission, to a model where voters directly elect justices.
Who can decide if a regulation is legal?
An Oklahoma bill seeks to limit judges from deferring to government agencies' interpretations of laws, particularly when statutes are ambiguous. This measure aims to clarify judges' responsibilities while reducing the executive branch's influence.
In Missouri, a lawmaker introduced a bill to remove a judge from the bench but later withdrew the proposal. The bill was intended to reduce the number of judges in a circuit court, potentially forcing the judge in question to step down.
These developments highlight the ongoing debate over the balance of power among government branches and the role of judges in interpreting and upholding laws.
