By: Phillip Knox and Peter C. Kiefer

This article has been updated from a previous version posted on August 20, 2018.

Back in 2013 we asked about the probability of state legislatures venting their displeasure with state courts, specifically by withholding funds. The assessment was mixed. Most of the 183 court professionals responded at that time that it was possible but by no means a certainty.

State LegislaturesIt appears our thinking was too limited when it came to possible futures on this theme. Ages ago, there was one main method of showing displeasure with the courts: withholding judicial positions. Since then several prospective strategies have emerged.

  • State legislatures have often withheld judicial positions, although as a means to “send a message” it was obscure. Statutes often designate minimum numbers of judicial positions per population, although the process to consider new positions is frequently complex. A legislature could be displeased with a judicial decision, it might just not have the funds that year, it might be preventing the Governor from appointing judges from the opposition party, or occasionally the county could oppose a request because it did not have the funds for a new courtroom and staff.[i]
  • As the futures scenario suggested, state legislatures in Kansas, North Carolina, and Iowa have attempted to limit court funding because of court rulings.
  • Occasionally, some states have “packed” an appellate court (usually the state Supreme Court).[ii]
  • Three legislatures have also attempted the impose changes to judicial terms of service.
  • Several legislatures have attempted to take rulemaking away from the courts. This includes Iowa which attempted to override the judiciary by specifically allowing citizens to carry guns into courthouses.[iii]

We are now seeing the latest strategy: impeachment. Impeaching State Supreme Court justices was attempted in Pennsylvania, and this month the West Virginia House of Delegates impeached the state’s Supreme Court. The rationale for impeachment was the justices outrageously extravagant spending.[iv] Back in June, prior to the impeachment vote, a grand jury indicted one of the justices for corruption.[v]

  • Could impeachment become the weapon of choice for state legislatures against courts? What could that do to reputation of the judicial branch as independent and impartial?
  • Could impeachment end up being a new form of judicial term limits as state legislatures replace judges wholesale if a new political party wins an election?
  • An almost unthinkable counter scenario, how likely is it that corruption is on the rise within the judicial branch?

We are incorporating the impeachment scenario into our upcoming 2019 survey, but we want to hear from you. Are there other scenarios you think we should include to characterize this ongoing quarrel between state courts and state legislatures? Email us at futureofcourts@gmail.com


[i] As an example, Arizona Revised Statute §12-121 designates a judicial position for every 30,000 population within a jurisdiction, however it also requires the county to petition the legislature to request a new position.
[ii] Yvonne Wingett Sanchez, “Gov. Doug Ducey Signs Legislation to Expand Arizona Supreme Court,” Arizona Republic, May 18, 2016. Many thanks to Alan Carlson who pointed out withholding judgeships and court packing as two methods.
[iii]“Legislative Assaults on State Courts ‑ 2018,” Brennan Center for Justice, February 6, 2018.
[iv]Campbell Robertson, “A Coup or a Couch: What’s Behind the Impeachment of West Virginia’s Supreme Court,” New York Times, August 14, 2018.
[v] Bill Chappel, “W.Va. Supreme Court Justice Allen Loughry Is Charged With 22 Counts, Including Fraud,” National Public Radio, June 20, 2018.

Edward M. Eveld, “Kansas Supreme Court Rules Against Legislature in Separation-of-Powers Case,” The Kansas City Star, December 23, 2015.

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