States Fight Judicial Activism

Bills introduced in Florida, Washington state, and Idaho would allow state legislatures to override certain court decisions, and in the Arizona version, would give the legislature the power to prohibit state courts from enacting federal court decisions. Oklahoma’s bill would include a retirement age restriction that would effectively wipe out almost all judges currently serving on the state’s appeals court. Though most of these bills are being advanced by Republicans, Hawaii – where every state senator is a Democrat – has advanced a bill to give the Senate the power to decide whether to reconfirm judges for multiple terms in office. The states’ reasoning is a perception that courts have become too activist. “There’s nothing the legislature can do in any way to push back against the court,” Florida State Rep. Julio Gonzalez told the Washington Post. “That’s not a check and a balance. That’s not a dialogue. It’s a monologue from the judiciary to everybody else.”

The moves are cause for serious alarm, says Sandy D’Alemberte, former president of the American Bar Association and former senior Democratic Florida legislator. “This just shows a complete misunderstanding of what the function of courts are,” D’Alemberte said. “It really needs to be there to resist majority sentiment, not be subject to it.” Alicia Bannon, with the nonpartisan Brennan Center for Justice, agrees: “This notion that a legislature can just override a court ruling is quite radical. What this does is really shift power toward political institutions in a way I think should make people worried about the ability of courts to enforce the Constitution and protect peoples’ rights.”