Date of this Version
As a separation-of-powers matter, the nation’s framers and their state counterparts placed some distance between the legislative and judiciary branches so that each might better serve the people. Of course, the separation between the two branches has not prevented legislation impacting the courts year in and year out, much of which could reasonably be described as changes that potentially infringe on the independence, fairness, and impartiality of the courts. (I term these “attacks on the courts.”) Moreover, the issue has been compounded lately by a series of efforts in initiative and referendum states to achieve by the ballot box what could not be accomplished through the legislature. Three areas in particular, those dealing with impeachment, judicial accountability, and court stripping, appear to be parts of larger national trends that will in all probability be replicated (in whole or in part) in other states in the future. This article describes recent legislative and citizen attacks on the courts and argues that there needs to be judicial awareness of and responses to potential encroachments on judicial independence. While impeachment and judicial accountability/personal liability for judges have found minimal support and success, altering the jurisdiction of the courts is proving to be robust and successful.