Legislators Attempt to Strip Courts of Power

  • January 23, 2012
  • By Maggie Clark
Frustrated with what they see as "activist judges" who make policy through their rulings, lawmakers in New Hampshire and Tennessee have proposed bills that would end the judicial branch's ability to rule on the constitutionality of legislation.

"The executive, legislative and judicial branches were created separate but equal, but the judiciary has overstepped their bounds," says Republican state Senator Mae Beavers, the lead sponsor of the Tennessee bill . Beavers wants to amend the state code to take away the state Supreme Court's jurisdiction to rule on the question of whether a law is or is not constitutional. "They're not just interpreting the law, but making policy."

Beavers is not the first Tennessee lawmaker to try and limit the state's courts. Last year, a bill to amend the state constitution to instruct judges that they may only "strictly construe the enacted text" of a law passed the Senate unanimously. But the legislative session ended before the House could vote on the bill.

In New Hampshire, a feud between the state judiciary and House Republicans reached a peak last October. The state Supreme Court had issued an advisory opinion that the legislature did not have the power to force the attorney general to join a multi-state lawsuit against the federal health care overhaul. The House then overwhelmingly passed a resolution repudiating the court's opinion. During the House debate, Republican Dan Itse called judges "unelected bureaucrats," who "usurp and pervert the power of the people, destroying their liberty."

This year's bill goes much farther than a repudiation. It attempts to amend the state Constitution so that "the supreme court shall determine the constitutionality of judicial acts and the legislature shall determine the constitutionality of legislative acts."

The amendment's lead sponsor, Republican state Representative Gregory Sorg, says he's introduced this amendment for the last four legislative sessions, and each time the interest has grown. "(Judicial review) makes judges more powerful and helps legislators avoid making tough calls," Sorg says. "There are more who think like I do now. It was much more lonely in 2003 when I first introduced the bill."

For New Hampshire to amend its constitution through an act of the legislature, the amendment must pass both houses with a three-fifths majority. Then, it must pass a popular vote with a two-thirds majority.

These attacks on the courts, says Bill Rafferty, editor of the National Center for State Courts' Gavel to Gavel blog , are indicative of a general feeling among some legislators that the courts are just a recalcitrant state agency, not a co-equal branch of government.

"The only other time the courts have seen their jurisdictions removed is when they're transferred to other courts, like when a state creates a new court of appeals, or a tax court — but that's administrative," Rafferty says. "What's unprecedented about these bills is the extent to which they're removing the court's jurisdiction altogether, in effect, hobbling them."

Although legislators have never liked it when judges struck down their laws, Rafferty says, they have traditionally tried to work with the courts to amend the laws in question. "Now it's not a disagreement about the law," Rafferty says. "We're seeing that rather than changing the laws, they're going after the judges." 

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