Court-bashing is nothing new. As far back as the 1800s, New Hampshire’s legislature disbanded the state’s Supreme Court five times, said Bill Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Va., who has tracked legislation affecting the judicial system for years.
But political attempts to reshape or constrain state courts have risen sharply in the last 10 years, Mr. Raftery said, propelled by polarization and a fading of the civics-book notion of governmental checks and balances. That became especially true, he said, during the Great Recession that began in 2007, when legislators slashed spending for state judicial systems in the name of balancing budgets — but also, sometimes, in the cause of punishing courts for rulings they disliked.
“It ultimately boils down to this,” he said. “The courts are not looked on by some legislators as being an independent branch of government. For some, they’re looked on as an agency that needs to be brought to heel.”
This combative approach, some analysts say, mirrors the heated rhetoric about judicial bias and overreach that has become a staple of national politics.
“This is Trumpism at the lower level,” said Bernard Grofman, an elections expert at the University of California, Irvine who redrew Virginia’s congressional map in 2015 following a federal court finding that districts had been racially gerrymandered. “This is the view that if independent branches of government say things that don’t match what you say or do, you fire them; you impeach them; you malign them; you destroy them as best you can.”
The latest example is in Pennsylvania, where the State Supreme Court split along party lines last month when it struck down the congressional district map as a Republican-drawn gerrymander. The court gave the Republican-dominated legislature three weeks to draw a new House map, adding that it would take over the map-drawing if the lawmakers could not reach agreement on new boundaries with the state’s Democratic governor.
Even after the United States Supreme Court rejected the legislature’s plea to intervene on Monday, Republicans have refused to completely accept the state court’s decision. The president of the State Senate, Joe Scarnati, first raised eyebrows by stating that he would not comply with the court’s order to turn over any data used in drawing the House maps. Later, he said he might file ethics complaints against two Democratic justices who expressed opinions on gerrymandering before the January decision, seeking to disqualify them from the ruling.
On Friday, hours before the court-appointed deadline, Republican legislators sent a proposed new House map to Gov. Tom Wolf, a Democrat.
But analysts say the proposed map, which was prepared without input from the legislature’s Democrats, effectively preserves the existing Republican dominance in the House, albeit with boundaries that do not “wander seemingly arbitrarily across Pennsylvania,” as the court said of the map it struck down.
On Tuesday, Mr. Wolf rejected the map, and the job of redistricting will fall to Nathaniel Persily, a professor of law at Stanford University who is the court-appointed special master. But in an interview last week, Mr. Scarnati called a court takeover of the mapping process “grossly unconstitutional,” and pledged to challenge it in federal court.
In the State House, Cris Dush, a Republican, is circulating a proposal to impeach the Democratic justices who were the 5-2 majority in the decision. In an interview, Mr. Dush said he did not dispute their authority to strike down the Republican map, but complained that their order to draw new boundaries tramples on legislative powers.
Mr. Dush said his proposal has support in the House, but that he likely will not press it unless the court takes over the mapping responsibility from the legislature. “It’s judicial activism,” he said. “They’re not staying within the rule of the law. It happens far too often to us, and it’s time for the state legislature to rise up and call them accountable.”
Mr. Scarnati, the State Senate president, said he has not ruled out impeachment, but that Republicans should first pursue “other avenues” such as ethics complaints and a lawsuit.
The impeachment threat has drawn sharp criticism from some quarters. “Calling for impeachment — especially five of seven justices, especially when all five are Democrats — can’t help but look partisan,” said Douglas Keith, a senior counsel at the Democracy Program of the Brennan Center for Justice at the New York University School of Law. “We use impeachment to remove judges for serious criminal or ethical wrongdoing. This is a direct affront to the judicial branch’s power, not reasoned disagreement.”
That said, impeachment — or at least, impeachment threats and attempts — have become a common tool to pressure courts in recent years, said Mr. Raftery of the National Center for State Courts.
During the 2011 to 2012 legislative session, he said, lawmakers filed 14 bills in seven states seeking to remove judges, including an effort by Republicans in the State House to remove the entire New Hampshire Superior Court over its handling of custody and domestic relations cases.
But legislative attempts to rein in state judges include a panoply of tactics, from scalpel to cudgel. The North Carolina legislature’s ongoing campaign to remake state courts in more conservative and political lights is perhaps best known. The Brennan Center this week released a list of court-related proposals pending before legislatures in 14 states.
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