Last week in Wisconsin, an election for an open seat on the state Supreme Court was so bitterly contested that voters were barraged with more than $2.6 million in television and radio ads. Most of the money was spent by partisan outside groups attacking the candidates, who were nominally nonpartisan, for past decisions in criminal cases.
In Kansas, lawmakers are seeking to amend the state Constitution to strip the courts there of all power to rule on cases involving education funding. The push follows a ruling last year by the Kansas Supreme Court ordering the Legislature to find the money to fund the school system adequately by the end of this month or face a statewide school shutdown. Kansas has faced dire budget shortfalls since 2012, when it passed massive tax cuts championed by Sam Brownback, then the Republican governor.
Meanwhile, Republican legislators in North Carolina, who recently gerrymandered themselves into a veto-proof majority, have taken repeated aim at the state courts. On party-line votes, they reduced the size of the state’s midlevel appeals court, preventing Gov. Roy Cooper, a Democrat elected in 2016, from filling seats. They required judicial candidates running at all levels to identify themselves by partisan affiliation. They tried, and failed, to expand the state’s Supreme Court right before Cooper took office, in the hope of slipping a few extra appointments into the hands of the departing Republican governor, Pat McCrory. In a special session next month, they will attempt to gerrymander trial-court districts in favor of Republicans and to cut judicial terms from eight years to two. As one lawmaker justified it, “If you’re going to act like a legislator, perhaps you should run like one.”
And in Pennsylvania, a dozen Republican lawmakers have moved to impeach four justices of the state’s Supreme Court – all of them Democrats – for their majority vote in January to strike down a congressional district map that was heavily biased in favor of Republicans. Pat Toomey, Pennsylvania’s supposedly moderate Republican senator, called the 4-3 ruling a “blatant, unconstitutional, partisan power grab” and said of the push to remove the judges, “it’s inevitable that that conversation’s going to take place.”
Are we the only ones sensing a pattern here? Across the country, state judges are under increasing fire from lawmakers and outside groups angered by their rulings, their power, their tenure or simply their independence. That independence is, of course, central to the separation of powers, which defines American government, and to the legitimacy of the judicial branch in the eyes of the public. Going after judges for partisan reasons may not be a particularly new pastime, but it has become more popular as America’s politics have become more polarized and as brute tribal warfare replaces a respect for basic democratic values.
Already in 2018, lawmakers in at least 16 states are considering at least 51 bills that would diminish or politicize the role of the judiciary, according to a report by the Brennan Center for Justice. Some bills would inject more politics into the judicial selection process, or into court rulings themselves. For example, Washington state lawmakers are considering whether to require every decision by the state Supreme Court to carry a “fiscal note” estimating the cost the decision would impose on taxpayers – which effectively puts the vindication of basic constitutional rights to a majority vote.
Bills elsewhere would slash funding to the courts, shorten judicial term lengths or just eliminate seats, as has happened in North Carolina. Still others would protect legislatures from the effects of court rulings, as Kansas lawmakers are trying to do in the case of school funding. In Missouri, a proposed amendment would let voters decide whether a federal law is constitutional. If they say no, state courts will be barred from enforcing that law or hearing disputes involving it or any similar state law.
Most if not all of these bills are terrible for the judiciary and harmful to democracy. But even if they don’t become law, the message they send and the publicity they generate can have real consequences. This is especially true for elected judges, who may be more wary of issuing what they perceive to be controversial or unpopular rulings, for fear of blowback. That fear isn’t unfounded. In 2010, three justices of the Iowa Supreme Court lost retention elections the year after they voted to legalize same-sex marriage in the state.
Of course, electing judges, as is done in the majority of states, doesn’t just affect their behavior. Equally important, it affects how the public perceives them. One poll found that almost 9 in 10 voters said campaign contributions and spending by independent groups affect judicial decisions. Almost half of state judges agree. It’s no surprise, then, that studies have found judges more likely to issue pro-business rulings when business interests donate more to judicial campaigns and less likely to rule in favor of criminal defendants when the number of TV ads related to judicial campaigns increases.
But no matter how judges get on the bench, the important thing is to keep them as insulated as possible from outside political pressures. Instead, many lawmakers in recent years have been doing the opposite, treating judges like political pawns who are, or should be, more beholden to a partisan platform or public pressure than to the law. For those lawmakers to then complain about judges acting like legislators is rich.
Especially dangerous are efforts to impeach justices over specific rulings, as is happening now in Pennsylvania. Impeachment is a tool best used very rarely, as it has been with federal judges. In fact, only 15 federal judges have been impeached in American history. Impeachment should be reserved for situations involving serious ethical or criminal violations, not for decisions that displease a political party. (Pennsylvania’s Republican lawmakers have also openly defied an order from the state’s high court in the gerrymandering case, a sign of disrespect for the judiciary and an infringement of the separation of powers.)
Of course, judges have political beliefs and ideological persuasions. Everyone does. But public officials must not treat the judiciary as if it were just another political branch. Doing so undermines public respect for state courts – which provide most Americans with their only experiences with the judiciary – and debases their hard-won independence, for nothing but partisan gain.