During the 2011-12 biennium, legislators intending to limit judicial authority and judicial independence launched a series of other assaults.

In New Hampshire, Oklahoma, and Tennessee, legislators introduced bills to bar judicial review of acts passed by the state legislature. The Oklahoma and New Hampshire bills died, while the Tennessee bill was withdrawn by its sponsor, House Judiciary Committee Chair Mae Beavers, after it came under sharp criticism from both political parties. “That is crossing the line on separation of powers between the legislative and judicial branches,” said Tennessee Senate Speaker Ron Ramsey, a fellow Republican. “Because we make the law and they interpret the law. If you don’t like what they’re coming down with, then you do everything you can to change the court.”1

Some legislators in New Hampshire attempted to assert new authority over the courts with a proposal to amend the constitution to disband the state’s appellate courts, with the option of reconstructing them by statute.2 The bill aimed to put a constitutional amendment before voters, but was killed by the House of Representatives on a 251-47 vote.

On Election Day 2012, New Hampshire voters also rejected a proposed constitutional amendment that had been approved by the legislature. It would have given the legislature a veto over procedural rules established by the state’s Supreme Court. The referendum marked the third time New Hampshire voters have rejected this measure in the past decade.3 Opponents of the measure included the New Hampshire Bar Association and two former state Supreme Court justices.

In addition to proposed statutory and constitutional changes, a record number of impeachment bills were also introduced in 2011. Impeachment efforts over specific rulings in hot-button cases were advanced by legislators in several states, including Iowa, Missouri, and New Hampshire. To date, they have been unsuccessful.

In Iowa, a handful of legislators pushed to impeach four justices who had not stood for retention in 2010. Despite solid voter opposition, the legislators pushed a resolution contending the court and these four justices had overstepped their authority in 2009 in the decision legalizing marriage for same-sex couples in Iowa. Iowa’s constitution states that a justice can be impeached only “for any misdemeanor or malfeasance in office,” yet the impeachment resolution did not allege ethical or criminal wrongdoing.

The calls for impeachment were condemned widely, and after Iowa’s Republican governor and House speaker spoke out against impeachment, the threat died. A similar effort was resurrected briefly in 2012 but it gained no traction.

In Missouri, articles of impeachment against St. Louis Circuit Judge John A. Ross were filed by a Missouri state representative on the same day that Judge Ross was scheduled to testify in his confirmation hearing for a federal judgeship before the U.S. Senate Judiciary Committee in Washington. Judge Ross was accused of “judicial activism” and racial discrimination in the impeachment articles, which were later dropped. He ultimately was confirmed for the federal bench in Missouri.

Additional Assaults on Judicial Independence Notes

  1. Erik Schelzig, Beavers Withdraws Bill to Strip Power from Courts, Assocaited Press, Jan. 23, 2012, http://blogs.knoxnews.com/….
  2. Bill Raftery, Taking Page Out of Gingrich Playbook, New Hampshire Proposal Would Eliminate State’s Supreme and Superior Courts, Gavel to Gavel, Dec 23, 2011, http://gaveltogavel.us/….
  3. Constitutional Amendment Questions – 2012 General Election, Office of the New Hampshire Secretary of State, http://sos.nh.gov/…; Bill Raftery, Election 2012: The Losers Lost Big and What the Losses Portend for 2013/2014, Gavel to Gavel, Nov. 15, 2012, http://sos.nh.gov/2012ConConGen.aspx; Bill Raftery, Election 2012: The Losers Lost Big and What the Losses Portend for 2013/2014, Gavel to Gavel, Nov. 15, 2012, http://gaveltogavel.us/….