State Judges Must Guard Their Independence

A robust system of checks and balances is the cornerstone of a healthy democracy, and a fully functioning, independent judicial branch is critical to that. At its best, the judiciary operates as a neutral arbiter of the law — an impartial referee. Yes, judges have different approaches to interpreting the law, but all of them must adhere to a set of norms that has governed the judiciary for centuries: evaluating cases in a manner that is consistent with existing law and precedent and protecting the rights of citizens. The judiciary is supposed to be independent — insulated from partisan bias and political influence — and its legitimacy is dependent on the goodwill of the people. 

But an alarming pattern is unfolding across the country that threatens not only the independence of state courts but also our democracy.

The norms that have governed the relationship between the judicial and legislative branches — and our larger system of checks and balances — are being upended. State legislatures, particularly those that are heavily gerrymandered, are increasingly antagonistic toward their states’ supreme courts. The reason is simple. They do not want to be held to account by a coequal branch of government for violating state laws, constitutional principles, and basic fairness. 

It is no coincidence that this pattern is unfolding at a time when state courts are increasingly responsible for protecting the rights of citizens, from voting to reproductive rights. Disastrous decisions by the U.S. Supreme Court have cut off protections and closed federal courthouse doors to too many seeking justice. As a result, in many states, state courts are the only entities that stand in the way of attempts by gerrymandered legislatures to impose unpopular, minority policies onto the people. It is a dangerous and arrogant practice that prioritizes politics and artificial power over democracy and the rule of law. And if we don’t pay attention now, it could upend our democratic systems. 

Legislatures are using three major tactics to challenge the norms that govern their relationship to state courts:

1) Ignoring and defying court orders: In 2021 and 2022, the Ohio Supreme Court struck down the Republican-drawn gerrymandered congressional and state legislative maps. Republican state legislators and statewide elected officials backed the illegal maps and ignored the court’s order to redraw compliant districts not once, not twice, but seven times. It brought the state into uncharted waters. Ohioans were forced to vote using unconstitutionally gerrymandered districts in the 2022 election. 

Normally, if a party does not adhere to a court order, there are significant consequences. But, at every turn, Ohio elected officials ignored or arrogantly defied court orders that sought to enforce the state constitution, drawing new gerrymanders that entrenched Republican interests at the expense of the state’s voters each time. This blatant disregard for the rule of law has been disastrous for the state of democracy in Ohio. It serves as a warning for what will happen if there are no consequences for those who openly flout directives from a state’s judiciary. 

2) Threatening judicial independence through legislation: Legislatures are also increasingly attempting to influence judicial decisions through outright intimidation. Using legislative tactics, they send a clear message to justices who are considering a decision the legislature disagrees with: if you hold us to account, we’ll weaken your branch of government, make your job harder, or even remove you from office altogether. Last year alone, legislators in at least 25 states considered at least 74 bills targeting state courts, 5 of which have become law in 3 states. It’s a corrosive strategy that threatens the insulation judges must have from partisan bias and political interference. 

For example, threats of impeachment reverberated throughout the Ohio legislature against the state supreme court’s Republican chief justice after she voted to strike down their clearly gerrymandered maps. The same is happening in Wisconsin, where a liberal state supreme court justice was elected to office, defeating Republican legislators’ preferred candidate. 

In Pennsylvania, after the state supreme court struck down a gerrymandered congressional map in 2018, Republican legislators redoubled efforts to amend the state constitution to make, for the first time, state supreme court races dependent on regional electoral districts — as opposed to statewide consideration — similar to how districts are drawn for Congress and state legislatures. The bill provided virtually no guardrails in the redistricting process, giving the legislature full power to gerrymander the judicial maps. The proposed amendment, which needed to pass two consecutive legislative sessions to go before voters, passed the state senate in 2018 and both chambers in the 2019–2020 legislative session, before being defeated in the 2021–2022 session. 

3) Asking federal courts to weaken the authority of state courts: This summer, a major attempt to weaken state systems of checks and balances was defeated before the U.S. Supreme Court. In the case, Moore v. Harper, Republican legislators in North Carolina appealed a landmark anti-gerrymandering state supreme court decision to the U.S. Supreme Court. In their appeal, the legislators put forward an argument based on the so-called independent state legislature theory, a fringe right-wing legal theory concocted to give legislatures unchecked power to regulate all matters pertaining to federal elections, from congressional redistricting to voting rules. In simpler terms: under the theory, state courts could not hold legislatures accountable for enacting voting legislation that violated their state’s constitution. 

The Supreme Court rejected the theory, and resoundingly so. But it remains deeply worrisome that legislators filed multiple appeals to the U.S. Supreme Court over the past two years based on different versions of this fringe legal theory. In addition to North Carolina, Pennsylvania legislators filed a lawsuit arguing that state courts have no authority to intervene when the executive and legislative branches cannot come to an agreement on redistricting maps ahead of election deadlines. In Ohio, Republican legislators filed an appeal arguing that constitutional amendments enacted by ballot measures, such as the redistricting reforms enshrined in the Ohio Constitution, are unenforceable. 

The increasing willingness by state legislatures to do whatever it takes — even if it could result in weakening our systems of checks and balances and even if it could end our federalist system as we know it — to circumvent established procedures and crush the will of the people is exceedingly dangerous. 

The best way to fight back against these forces is clear: accountability. Shining a spotlight on this issue is a necessary start. But citizens must also do their part by holding legislators to account at the ballot box when they abuse their power. Finally, it is also incumbent upon state courts to step up forcefully at this moment. 

Ohio is a warning sign for what will happen if courts do not assert their authority when a coequal branch of government refuses to comply with legitimate court decrees. To be clear, it is not the fault of the court that the legislature ignored its orders, but the court never asserted its power to push back and provide real consequences to deter the legislature from continuing its unconstitutional behavior. For example, the plaintiffs asked the court to hold the state’s lawmakers in contempt for blatantly ignoring its orders, but the court never acted. And the people of Ohio ultimately suffered as a result. Judges must be clear-eyed about their role and ignore legislatures’ attempts to influence their decisions. If courts are to be neutral arbiters of the law in our democracy, they must be prepared to fight for their role. 

Our democracy needs a strong judiciary in order to function as it should. But it is incumbent upon everyone to do their part to achieve that — citizens, reporters, legislators, and judges. History has demonstrated that when we act collectively, we can always right the course of justice and democracy. Now is the time for all of us to do our part. If we want to protect our democracy, we have to DO democracy by being committed to our founding ideals and by getting meaningfully involved in the civic life of the nation. The stakes could not be higher. 

Eric H. Holder Jr. served as the 82nd attorney general of the United States.