Supreme Courts: The Legislatures' New Initiative

The United States has seen a new trend in state legislatures holding judiciaries to political tests in the last few years. While mostly unsuccessful, these trends have nonetheless challenged our fixed notions on the balance of power among the three branches of government. Partisan bodies' attempts to defile the power of state supreme courts threaten the well-established, independent nature of the Courts, making them vulnerable to further politicization. Long tenures and the difficulty of impeaching partly enforce the Courts' independence. In Federalist Paper 78, Hamilton defends the Courts’ independence by stating that “the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.” Some state legislatures, however, would prefer to alter this long-standing, systematic process of checks on power. Some state legislatures are employing new and creative ways, such as attempting to grab new power based on faulty interpretations of the Constitution, threatening to impeach, and altering how Court seats are won to exert power. This trend may be alarming in that it undermines the independent judiciary, a fundamental piece of the structure of our nation. 

In the most recent and critical test of legislative attempts to exert power onto judiciaries, the U.S. Supreme Court heard a case involving an argument based on Independent Legislature Theory, a widely criticized interpretation of the Constitution’s Election Clause. The theory is defined by the Brennan Center for Justice as an argument for “state legislatures exclusive and near-absolute power to regulate federal elections.” The Election Clause in Article I states that “... holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Advocates of Independent Legislature Theory often read this clause as vesting complete, sovereign authority to run federal elections in the legislature, irrespective of the State Constitution or other branches of government. According to this view, the Court cannot review prominent representative matters, such as voting rights and district maps drawn for federal elections, leaving these questions concerning a fundamental right up to partisanism. 

The case, Moore v Harper (2023) was decided by the Supreme Court of the United States this past June, where the court rejected the Independent Legislature Theory as applied by the defendants. The Court’s reasoning included an assertion of the long-held power of judicial review, which gives the Court the power to review the constitutionality of legislative acts. 

To understand the case and its effects, it is crucial to have some background information. North Carolina has a long and complex history with claims of gerrymandering specifically targeting Black Democrats. In 2020, following new census data, the NC General Assembly prepared to redraw district maps, as is common practice. Soon after, a number of interest groups challenged the maps as partisan gerrymandering. Sent to a trial court (Harper v Hall), it was concluded that the question was non-justiciable, meaning it could not be decided on legality or in a court of law. The NC Supreme Court, with a democratic majority (4-3), quickly intervened and reversed the decision, determining that while partisan gerrymandering questions are outside the jurisdiction of federal courts, it is permissible in the North Carolina Constitution. The Court further established that the Election Clause in the U.S. Constitution does not grant comprehensive power to the state legislature with respect to running federal elections. 

A trial court drew remedial maps, as the state Supreme Court required for the next election cycle. The legislature then appealed this map to the newly instated republican majority (5-2), state Supreme Court at which point the Court overruled its earlier actions. Both removed the trial court map and determined that the Supreme Court of North Carolina cannot rule on partisan gerrymandering cases.

Ultimately, this case made its way to the United States Supreme Court, where certiorari was granted, to the dismay of Clarence Thomas, sometime in late 2022. The Supreme Court interested themselves in the rising Independent Legislature Theory and, in this case, by a vote of 6-3, ruled against it. In the bipartisan move, the Court effectively reaffirmed protections for voting rights. While in this case, the state legislature’s attempt to rebalance power between itself and the Court was struck down, the ruling has not diverted other state legislatures from their pursuits of flaunting power. 

In Wisconsin, a Supreme Court Justice is facing impeachment due to her comments made while running for office concerning gerrymandering, where she stated her disapproval and hinted at a vote overruling the maps. Per the Wisconsin State Constitution, Supreme Court Justices are elected and serve for ten years, making their positions inherently political. Justice Janet Protasiewicz won her seat in a landslide in April, ending the Court's Conservative tenure and giving liberals a 4-3 majority. Republicans in the state legislature began to fear their maps, recognized as one of the most extreme cases of partisan gerrymandering by analysts and the media, would be overruled in the liberal Court. The Republican Legislature, disquieted by the results of Justice Protasiewicz’s election, feeling their strong and long-served hold on power begin to dwindle, began to seek an alternative route. 

Robin Vos, speaker of the Wisconsin State Assembly, and his republican allies entertained the idea of impeachment. They argued that the Justice is unable to rule fairly given her acceptance of donation money and her comments while running. Not only would the move be practically unprecedented, but the Wisconsin State Constitution also has a high standard for the impeachment of an official, exclusively warranting the act in the case of “corrupt conduct in office, or for crimes and misdemeanors.” The American Civil Liberties Union (ACLU) warned that proceeding with an impeachment so evidently based on partisan goals would be detrimental to democracy, calling it an abuse of legislative power. The baseless calls for impeachment are an attempt by a majority of the legislature to use the power of impeachment to assert their will to the judicial branch. It broadens the scope of the impeachment clause and, if successful, would adversely expand legislative power, allowing legislators to easily impeach justices whose rulings they do not agree with. 

Just one year ago, the Supreme Court of Montana struck down a bill in a 5-2 decision that would have asked voters to decide if the Court should run elections as the legislature does, through districts. Historically, judicial elections in the state have been conducted through a state-wide election. With a lack of sufficient legal argument or precedent to back up the bill and the potential for subversive consequences, the Supreme Court upheld a lower court decision striking the provision from the ballot. As the Brennan Center for Justice points out, the bill, should it have been voted in favor of, would have paved the way for legislatures to subject the Court to gerrymandering. The Wisconsin Supreme Court in the state would effectively forfeit its ability to rule impartially, enabling constitutional decision-making to be more widely based on policy preferences, a direct dismissal of judicial restraint. A partisanly manufactured Court obstructs its legitimacy, and as a result, confidence in the Court would begin to falter. 

While each of these instances carries a few common themes, such as challenges to gerrymandering, the overarching trend is legislatures that feel entitled to an authority never vested in it. Abusing checks and balances in the name of “representing the people” undermines the people by disrupting the balance of power, an essential pillar of our nation and democracy. The Framers established a clear balance of power to preserve the integrity and foundations of the Constitution, reaffirmed by generations, to ensure the rights and liberties of the Americans. Therefore, these state legislators, fueled by partisanism and a thirst for power, must not be permitted to influence Courts in any way that bypasses what is attributed to them by the US Constitution.

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1 Alexander Hamilton, The Federalist Papers 78 (1788). 

2 Ethan Herenstein and Thomas Wolf. “The ‘Independent State Legislature Theory,’ Explained” Brennan Center for Justice. (June 27, 2023).

3 U.S. CONST. art. I, § 4, cl. 1.

4 Herenstein, Ethan, and Thomas Wolf. “The ‘Independent State Legislature Theory,’ Explained”

5 Moore v Harper, 600 U.S. _ (2023).

6 Marbury v. Madison, 5 U.S. 137 (1803).

7 Cooper v. Harris 581 U.S. _ (2017).

8 Moore v Harper, 600 U.S. _ (2023) 

9 Ibid

10 Ibid

11 Megan O’Matz, Wisconsin’s Republicans Went to Extremes in Gerrymandering. Now They’re Scrambling to Protect that Power. ProPublica (2023).

12 WI. CONST. of 1848, art. VII, § 4

13 Megan O’Matz, Wisconsin’s Republicans Went to Extremes in Gerrymandering. Now They’re Scrambling to Protect that Power. ProPublica (2023).

14 Scott Bauer, Wisconsin Republican Leader asks former State Supreme Court Justices to Review Impeachment. Associated Press (2023).

15 WI. CONST. of 1848, art. VII, § 1 

16 Brennan, Melinda. ACLU of Wisconsin Call's Potential Impeachment of Supreme Court Justice an Attack on Democracy. ACLU Wisconsin (September 2023).

17 H.B. 325, 2022 (MT)

18 McDonald v Jacobsen, 2022 MT 160.

19 Patrick Berry, et.al. “Legislative Assaults on State Courts–December 2022 Update”. Brennan Center for Justice (December 2022)