Introduction: The Growing Tension Between State Legislatures and the Judiciary
In recent months, a growing number of state legislatures across the United States have introduced measures aimed at reducing the power of the judiciary. These proposals reflect a deeper tension between the legislative and judicial branches of government, a conflict that has existed since the early days of the nation but has intensified in recent years. This wave of legislative action comes as President Donald Trump’s administration faces numerous legal challenges, with the President and his allies accusing judges of overstepping their authority and engaging in "judicial activism." While such power struggles between branches of government are not new, the current efforts to weaken the judiciary appear to be gaining momentum, raising important questions about the balance of power and the role of the courts in interpreting the law.
Who Can Decide What’s Constitutional? Montana Challenges a Landmark Precedent
One of the most significant proposals comes from Montana, where a legislative committee has advanced a measure that challenges the long-standing precedent established by the U.S. Supreme Court in the landmark case of Marbury v. Madison (1803). This decision affirmed the principle of judicial review, which grants courts the authority to determine whether laws are constitutional. The Montana bill, sponsored by Republican lawmakers, asserts that the idea of courts having exclusive power to decide what is constitutional is a "myth" and does not accurately reflect the Marbury v. Madison ruling. Instead, the measure argues that "no single branch has exclusive power to bind its decisions on another branch of government." While the bill still needs to pass the full House, similar legislation has been introduced in Kentucky, Tennessee, and West Virginia, indicating a broader movement to limit judicial authority.
The push in Montana follows court rulings that Republican lawmakers have found unfavorable, including a district judge’s decision to block enforcement of three laws restricting abortion access and the state Supreme Court’s decision to keep a law banning gender-affirming medical care for transgender minors on hold. While the bill’s sponsor, Rep. Lee Deming, claims that the measure is not a response to specific rulings, the timing suggests a reaction to judicial decisions that have thwarted legislative priorities. If passed, the bill could significantly alter the balance of power in Montana, potentially setting a precedent for other states to follow.
Kansas Considers Changing How Supreme Court Justices Are Selected
In Kansas, Republican leaders have long been frustrated with state Supreme Court rulings that have required increased spending on public schools, overturned death sentences, and protected abortion rights. In response, lawmakers are renewing efforts to change the process by which state Supreme Court justices are selected. Currently, the governor selects a justice from three nominees put forth by a commission controlled by lawyers, and voters have the opportunity to decide every six years whether a justice can continue serving. Republican leaders, including Senate President Ty Masterson, are pushing to reduce the influence of lawyers in the selection process and instead allow voters to elect justices directly, as was the case in Kansas before 1960.
Proponents of the change argue that it would make the judiciary more accountable to the people. However, critics warn that shifting to elections could lead to justices being chosen based on their ability to raise campaign funds rather than their legal expertise and experience. Fred Logan, a lawyer and former Kansas Republican Party chair, expressed concerns during a legislative hearing that such a change could undermine the independence of the judiciary. If approved by lawmakers, the proposal would go before voters for final approval.
Who Can Decide If a Regulation Is Legal? Oklahoma Weighs In
In Oklahoma, lawmakers are considering a bill that would instruct judges not to defer to government agencies’ interpretations of laws when the statutes themselves are not clear. This measure would not only Limit the authority of judges but also reduce the power of the executive branch by curbing the influence of regulatory agencies. Supporters of the bill argue that it would help prevent agency overreach, a concern that has been echoed by conservatives and business groups. The measure aligns with a recent U.S. Supreme Court ruling that limited the deference given to agency interpretations of laws.
Similar measures have been adopted in at least 20 states through laws, court rulings, and even a constitutional amendment in Florida, according to an analysis by Ballotpedia. The Oklahoma bill has advanced to the full Senate, where its fate remains uncertain. If passed, it could further shift the balance of power in state government, giving lawmakers greater control over how regulations are interpreted and enforced.
A Missouri Lawmaker’s Attempt to Oust a Judge Fails—for Now
In Missouri, a legislative leader recently proposed a bill designed to oust a specific circuit court judge whose rulings he disliked. House Speaker Pro Tem Chad Perkins, a Republican, introduced a measure to reduce the number of judges in a mid-Missouri circuit from four to three, which would effectively push Judge Cotton Walker off the bench. Perkins’ dissatisfaction with Walker stems from several rulings, including one that allowed a marijuana legalization initiative to appear on the ballot and another that forced a rewrite of the state’s description of an abortion rights ballot measure.
However, Perkins has since put the legislation on hold due to concerns about the practical impact of reducing the number of judges in a circuit with a heavy caseload. While he expressed continued dissatisfaction with Walker’s rulings, he acknowledged that the matter is ultimately for the voters of Cole County to decide. Judge Walker, who would be up for reelection next year if he chooses to run, remains on the bench for now. The episode highlights the ongoing tension between lawmakers and judges, as well as the potential for political motivations to influence efforts to curtail judicial authority.
Conclusion: The Implications of These Measures and the Future of Judicial Power
The measures introduced in Montana, Kansas, Oklahoma, and Missouri reflect a broader effort by state legislatures to assert their authority over the judiciary, challenging long-standing principles of judicial review and altering the processes by which judges are selected and regulations are interpreted. While these efforts are not unprecedented, they come at a time when the relationship between the branches of government is under particular strain. The outcome of these measures will depend on the results of legislative sessions in the coming months, but their potential implications are significant.
If successful, these measures could lead to a shift in the balance of power, giving lawmakers greater control over the judiciary and limiting the ability of courts to check executive and legislative authority. Critics warn that such changes could undermine the independence of the judiciary and threaten the rule of law. At the same time, supporters argue that these measures are necessary to hold judges accountable and prevent abuses of power. As these debates unfold, they raise important questions about the role of the judiciary in a democratic society and the importance of maintaining a balance of power between the branches of government. Ultimately, the success or failure of these measures will have far-reaching consequences for the legal and political landscape of the United States.
