TOPEKA, Kansas — Recent initiatives in multiple state legislatures are spotlighting novel strategies aimed at reducing judicial power. Among these proposals is the challenge to the age-old doctrine that courts possess the authority to determine constitutional questions, alongside potential revisions in the judicial selection process.
The friction between the judiciary and other governmental branches isn’t a new phenomenon; however, it has intensified recently. This increase in tension aligns with the numerous lawsuits that President Donald Trump has faced, questioning his administration’s policies. Here, the administration’s stance is that it’s not about the objectives of these policies but the perceived activism of judges who are perceived as barriers.
William Raftery, a specialist at the National Center for State Courts, explained that the power tussle within state governments has historical roots dating back to the early U.S. days. Historically, legislative proposals targeting judicial authority frequently surface, though, most often, they fail to be enacted. The impact of the current proposals will become clearer as state legislative sessions conclude in the coming months.
An in-depth look at these measures reveals an intriguing scenario unfolding in various states:
**Judicial Review and Constitutionality**
In 1803, a pivotal U.S. Supreme Court ruling in Marbury v. Madison established the principle allowing courts to declare laws unconstitutional. This century-old precedent faces scrutiny in Montana, where a legislative committee has moved to challenge this idea. The proposed measure contends that it’s a “myth” for courts to have exclusive rights to decide constitutional matters. Instead, the bill argues that no branch should possess sole decision-making power over others. Although it cleared the Senate previously, it faltered in the House, but will soon face another vote. This legislative maneuver follows rulings from Montana’s courts that displeased the state’s GOP lawmakers, particularly concerning abortion and transgender medical care rulings. Similar legislative visions are being discussed in Kentucky, Tennessee, and West Virginia.
**Judicial Selection in Kansas**
Kansas GOP leaders are revisiting efforts to change the Supreme Court justice selection process. Dissatisfaction has long simmered over court verdicts demanding more educational funding, challenging death penalty enforceability, and safeguarding abortion rights. Presently, justices are appointed by the governor from a lawyer-led commission’s list, with subsequent voter approval every six years. Senate President Ty Masterson aims to revert to a pre-1960 system where voters directly elect justices, a model still in place in 22 states. Should lawmakers support this proposal, it would be presented to Kansas voters. However, Fred Logan, a seasoned lawyer, warned that such changes might prioritize fundraising ability over legal expertise for aspiring justices.
**Regulatory Authority in Oklahoma**
An Oklahoma legislative effort seeks to curtail judicial deference to executive agency legal interpretations when statutory clarity is absent. This proposal would redefine judicial responsibilities and trim executive authority, echoing last year’s U.S. Supreme Court determination lauded by conservatives and business groups for checking perceived agency overreach. Approximately 20 states are aligning with this stance through various legal mechanisms. The Oklahoma Senate is set to consider the proposal further.
**Missouri’s Judicial Controversy**
In Missouri, a high-ranking legislative figure initially pursued a bill to unseat a circuit court judge, Cotton Walker, due to disagreements over previous rulings. House Speaker Pro Tem Chad Perkins aimed to reduce local judges from four to three, effectively targeting Walker. Walker’s rulings had paved ways for notable ballot measures regarding marijuana legalization and abortion rights. However, Perkins has paused pursuing the bill, recognizing the circuit’s heavy caseload—a challenge incompatible with reducing judicial capacity. He remains dissatisfied with Walker’s decisions, but ultimately conceded that it’s a matter for the voters in Cole County to address during elections next year.
