The Washington PostDemocracy Dies in Darkness

Republicans are calling for the impeachment of Pennsylvania judges. It’s nothing new.

(David Goldman/AP)

Last month, the Pennsylvania Supreme Court voided the state’s congressional district map, deciding that its extreme Republican bias violated the state’s constitution. Within days, Republican state lawmakers promised to impeach the five state justices who voted to strike down the map. Cries for impeachment recurred when the court released a more evenhanded map. Even Pennsylvania’s Republican U.S. senator, Patrick J. Toomey, suggested a “conversation” about impeaching his state’s judges.

Impeaching judges for their decisions may seem unusual. But as I show in recently published work, court-curbing threats are common in state politics. Lawmakers find it valuable to threaten judges both to signal disagreement and warn them about how they decide future cases.

Here’s how I did my research 

I define court-curbing bills as measures designed to “restrict, remove or otherwise limit” the power of a court. Such bills include impeachment threats, measures to remove the power of judicial review and measures that would change how the justices are selected and retained.

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Using the Gavel to Gavel database maintained by the National Center for State Courts, I gathered data on all court-related bills introduced in the 50 U.S. states from 2008 through 2016. After reading each bill to determine whether it “curbed” the court in one way or another, I found more than 1,700 court-curbing bills in state legislatures in those nine years. The bills ranged in severity, proposing such things as new recusal rules for judges, limitations on campaign contributions for judicial candidates, changes in how judges are elected and even bills that would allow legislative override of court decisions.

Republicans introduced two-thirds of the court-curbing bills, of those for which I could locate sponsors. Historically, Democrats and Republicans have both used court-curbing, but today’s disproportionate use by state Republicans probably reflects that state legislatures are often more conservative than their judicial counterparts. As a result, the fact that Republican-controlled state legislatures have increased since 2010 has apparently led to more court-curbing bills on the whole. When examining news coverage of court-curbing attempts, we find not just the latest GOP attacks on Pennsylvania’s Supreme Court, but also Republican attacks on courts in Iowa in 2010, Kansas in 2016 and North Carolina in 2017.

Still, most of these bills look like idle threats. Lawmakers who actually sit on judiciary committees — and therefore actually have power to move such bills along — sponsor only about a third of them. Just 15 percent of the bills’ sponsors hold leadership positions in the assemblies. It’s no surprise then that nearly two-thirds of the bills die in committee and less than 3 percent become law.

So why do lawmakers threaten the courts?

Studies of court-curbing at the national level suggest that members of Congress take aim at the Supreme Court to stake out positions on an issue or signal to voters their displeasure with Court. And there’s some evidence that the Supreme Court less frequently engages in judicial review as lawmakers ramp up their court-curbing efforts.

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State court-curbing looks similar. State legislators signal their displeasure with the court and highlight their disagreements for constituents back home. Lawmakers typically threaten to curb the courts when they make decisions on controversial issues such as school funding, abortion and the death penalty. At other times, they are reacting to national-level forces, such as the Supreme Court’s decision to legalize same-sex marriage or the use of international law in a court decision, and communicating disagreement.

Of course, threats against state courts might be more effective than threats against the Supreme Court; very few state court justices are protected by life tenure, and many must face elections. Some evidence suggests that whether justices are elected or appointed does not affect lawmakers’ tendency to threaten the courts. But justices who serve for life are threatened more often.

More broadly, both ideology and opportunity drive judicial threats. More conservative state legislators introduce more court-curbing measures, especially in years when a state supreme court is either just more liberal or ideologically distant from the state legislature. Moreover, more professionalized assemblies — those that work year-round for better salaries and have more time and staff — introduce more of these bills.

Is Pennsylvania different? 

Developments in Pennsylvania are well within the norm of state politics: The state Supreme Court angered state lawmakers, who responded by threatening to impeach several justices. Granted, these efforts are likely to fail. But like legislators across the states, court threats empower Pennsylvania legislators to draw lines in the sand for future cases.

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Still, the Pennsylvania situation is different in two ways. First, Pennsylvania’s decision could start a wave of state court-curbing bills in other states whose constitutions empower their supreme courts to hear redistricting cases. And depending on how the Supreme Court rules this spring, new gerrymandering cases could prompt more such bills.

Second, it’s unusual to see U.S. senators and representatives threaten state judges with impeachment. Even President Trump has weighed in on the maps, although he has not mentioned removing the justices. If national actors continue to spotlight the court’s ruling in Pennsylvania, the threat could gain power.

Meghan Leonard (@ProfLeonard_ISU) is an associate professor of political science at Illinois State University. The research discussed here is funded by the National Science Foundation.