Legislators Are Out to Take Over Their State Judiciary Systems

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Illustration by Matt Mahurin

Court-packing and other devices legislators employ to control their justice systems are almost as old as the Constitution itself. In 1801 the lame-duck Federalist Congress and outgoing President John Adams raised opponents’ ire with bills that allowed Adams to appoint dozens of their party faithful to judgeships, including Chief Justice John Marshall.

Marshall, of course, also famously introduced the principle of judicial review, declaring in his seminal 1803 opinion Marbury v. Madison that the courts’ job is “to say what the law is.” The case involved a handful of judicial nominees whose positions new Democratic-Republican President Thomas Jefferson had eliminated.

More than a century later, when an aging and conservative Supreme Court exercised Marshall’s judicial review to strike down New Deal legislation, a frustrated Franklin D. Roosevelt struck back. He threatened to appoint one additional justice for each justice older than 70, and the decisions suddenly started going Roosevelt’s way. Today, in the wake of another decision that didn’t go their way, Republican legislators in Florida attempted to ram through a broad package of restrictions on the state’s judiciary last spring. The legislators tried unsuccessfully to emulate Texas and Oklahoma by splitting the Florida Supreme Court into civil and criminal divisions. They also tried to cut the state bar out of the judicial nominating process.


Florida is just one of dozens of states where legislators have attempted to seize control of the justice system to varying degrees.

Though attempts to tame the courts are nothing new, they historically arise in narrow contexts, such as single decisions in controversial cases, and usually stand slim chance of passage. But by 2011, the number and scope of legislative attacks had grown in dozens of states and covered nearly all phases of court administration, decision-making and judicial selection.

Observers note that many such bills ignore the doctrine of separation of powers that establishes the judiciary as a co-equal branch of government.

“We have never seen such a broad assault by legislators across the country on their courts of law,” says Charles W. Hall, director of communications for Justice at Stake, a Washington, D.C.-based advocacy group that espouses judicial fairness and impartiality.

Those who would curtail courts’ authority call it “judicial accountability.” Their detractors view it as a meaty thumb on the scales of justice that threatens the judiciary’s independence, not to mention impartiality.

Continue reading “Co-Equal Opportunity: Legislators Are Out to Take Over Their State Judiciary Systems” online in the January ABA Journal.

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