State Supreme Court Responsiveness to Court Curbing: Examining the Use of Judicial Review

Abstract

State legislatures introduce court-curbing legislation as they threaten to restrict the independence of state high courts. While scholars have examined when this legislation is introduced and what drives the introduction, we know little about how state supreme courts react to this legislation. In this paper, I begin the examination into how state courts react to court-curbing legislation by looking to the court’s exercise of its judicial review power. I theorize that state supreme courts are less likely to invoke their power of judicial review when facing increased court-curbing legislation because judicial review is the most direct form of communication between the branches. I also argue communication is necessarily conditioned by the methods of selection and retention in the states. Examining narrow and broad court curbing, I find that neither type of introduction affects the use of judicial review by the state supreme courts and that, in line with previous scholarship, courts are using legislative ideology as an informational signal in this interbranch interaction.

Keywords:

• State supreme courts
• state legislatures
• institutional interactions
• judicial decision-making

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Hanna, John. “Kansas Supreme Court says state is inadequately funding public schools, violating constitution.” Star Tribune 7 March 2014. Accessed 17 June 2021. https://www.startribune.com/kansas-high-court-school-funding-unconstitutional/248952891/

2 Cassens Weiss, Debra. “Kansas governor signs law cutting off court funding if courts strike down 2014 law” ABA Journal 8 June 2015. Accessed 3 January 2020. http://www.abajournal.com/news/article/kansas_governor_signs_law_cutting_off_court_funding_if_courts_strike_down_2

3 See “Solomon v. Kansas” https://www.brennancenter.org/our-work/court-cases/solomon-v-kansas

4 See Lefler, Dion, Suzanne Perez Tobias, Hunter Woodall, and Katy Bergen. “Kansas school funding still inadequate, Supreme Court says” The Wichita Eagle. 25 June 2018. https://bit.ly/2OZKHW0 and Shorman, Jonathan. “Kansas conservatives renew push for a constitutional amendment on schools after ruling” The Wichita Eagle. 26 June 2018. https://bit.ly/2PyUJyj

5 Hanna, John. “Kansas Court bolsters abortion rights, blocks ban” Associated Press. 26 April 2019. Accessed 17 June 2021. https://apnews.com/article/3f479b218a6140719e1694fcfcdb8036

6 Judicial review and court curbing are not the only forms of communication between the court and legislature. In a series of work, Douglas and Hartley (2001a, 2001b, 2003; Hartley and Douglas 2003) examine the independence of the judiciary via the budgetary process in the states. They find that judicial independence is threatened by this budgetary process as courts compete against the executive branch for funding and may be expected to raise revenues from the court system (Douglas and Hartley 2003).

7 Methodologically, this is dealt with by using time lags, where the court is reacting to court-curbing in the previous year as well as using an indicator of the change in the number of court curbing bills from the previous year.

8 Interestingly, narrow court curbing may be a response to actions taken by the state courts or federal courts, as is the case with foreign law bans, or reactions to same-sex marriage or the Affordable Care Act decisions. I treat these bills the same as reactions to state court actions because they are written in a way to punish the state courts. For example, a law may say a state court justice can be impeached or lose their salary for upholding one of these federal court decisions. Given this, I believe the curbing (rather than the impetus for the legislation) will be more determinative of the state high court’s actions.

9 See, Cleek, Ashley. “State Judicial Elections Become Political Battlegrounds” National Public Radio. Accessed 1 January 2020. https://www.npr.org/2016/11/02/500351735/state-judicial-elections-become-political-battlegrounds

10 In the 2010 retention election, all justices were retained with more than 60% of the vote. In the 2016 election, the retention support was down between 6 and 10 points.

11 There may be interactive effects of reappointment and ideological distance between the court and legislature, but there are not enough observations in the data from the few states with appointment/reappointments to test this.

12 Unfortunately, the exact dates that a bill was introduced, or that a judicial review case was decided are not readily available within the data.

13 Notably, I do not examine the passage of this legislation. Theoretically this is because the communication to the court from the legislature is via introduction of this legislation. Additionally, these bills rarely pass, with 3.7% (or 47) passing. Of those 47 bills that did become law, only three were broad curbing bills, including the changing the method of selection and retention in North Carolina to partisan elections in 2015.

14 The state-year with 23 court-curbing introductions was Tennessee in 2010 and 2012. Many of these introductions were changes to the method of selection and retention of the justices as the state legislature vehemently fought to change what is known as the “Tennessee Plan” merit selection system. Given this battle, after three court-curbing bills were introduced in Tennessee in 2008, from 2009 through 2013 an average of 16.2 court-curbing bills were introduced in Tennessee each year. In 2014 the voters of Tennessee ratified a constitutional amendment that gave the governor and state legislature a larger role in the method of selection. Following those changes, the legislature has averaged 4 court-curbing introductions in a year.

15 The broad and narrow court curbing measures were coded by the author. Broad court curbing fit into very specific categories: changing the methods of selection or retention (or the process followed); splitting the court (as Florida attempted to in 2011 and Oklahoma in 2016); term limits, or shortening the term of the justices including via lowering the mandatory retirement age; impeachments; threatens criminal punishment for judge decisions; removes judicial review or allows for legislative or citizen override of court decisions. For more on the details of this coding and other intercoder reliability scores, see (Author Identified 2022).

16 There are four states where the legislature meets every other year: Montana, Nevada, North Dakota, and Texas. For these states, I only include the even years (the legislature meets in the odd year in each state) for the measure of court-curbing that is lagged. I do not include these states in the models of the change in the number of bills, as this change is not possible to calculate clearly. As for Texas and Oklahoma, I am referring to decisions by their highest courts of civil appeals, not their high courts of criminal appeals.

17 I do consider a second measure of the dependent variable, the proportion of cases with statutes overturned to constitutional cases considered. This variable ranges from 0 to 1, with a mean of 0.05. The results of the models predicting this are in the appendix.

18 While there are some limitations to the state-year variable measurements, I address this by examining the case level as well. At the case level, I measure the invocation judicial review as if the court voted to overturn or overturn in part a statute as 1, and 0 otherwise. This gives 503 observations, with 85% as 0s. Case level models can be found in the Appendix.

19 The PAJID scores of state court ideology are comparable to the Berry et al state citizen and elite ideology scores, used here. But, the PAJID scores are not available at the state-court level after 2010. The Windett, Harden, and Hall (2015) ideal point measures of court ideology are not available for the time period and do not have a comparable measure of legislative ideology to calculate ideological distance.

20 In the Appendix, I include additional models that include variables that previous literature has demonstrated alters the decision to engage in judicial review in the states focusing on ideology (see Langer 2002; Leonard 2014). Because none of these variables reach a level of statistical significance, I leave them out of the models presented to avoid overfitting and for parsimony.

21 I also ran all models as multi-level mixed effects regressions. The results confirmed the results reported here.

22 There are multiple ways that docket control could be measured. I use the presence of an intermediate appellate court because it is the simplest indicator of at least some docket control of a state supreme court. Docket control can be a complex measure, and the intention here is to include as many states as possible while not testing the model for those states that must take all cases on appeal.

23 These categories are coded by the gavel-to-gavel project except for impeachment. Those were coded as any bill that would impeach or begin an impeachment investigation against any judge or justice in the state. They are mutually exclusive categories and are not co-linear.

24 Models without the interaction still demonstrated no evidence of a relationship between court curbing and judicial review.

25 All appointment states fall into one or the other of these categories except New Jersey. In New Jersey, justices have to be reappointed once then they serve for life. For this context, I included New Jersey in the reappointment states. This is because during the time of this study, there was significant disagreement between the Republican governor and Democratic controlled state legislature on retention. Prior to that, retention was generally a certainty but given the politicization of the process during the time studied, I refer to New Jersey as a retention state. I also ran the appointed/reappointed and appointed/life states as separate models. While the results were the same as presented here, the sample size of the models was too small to be confident in the results.

26 I also interacted government reappointment and the measures of court curbing, results of these interaction models can be found in the Appendix.