Court Curbing in the State House: Why State Legislators Attack Their Courts

Abstract

Legislative proposals that attack or curb state supreme courts are often introduced in state legislatures. However, the causes of state court curbing legislation have not been systematically analyzed. This article seeks to expand on existing knowledge of court curbing by examining what causes some U.S. state legislators to introduce court curbing bills. I develop a theoretical argument that court curbing is driven by court–legislator ideological distance and legislator electoral security. I demonstrate that legislators who are ideologically distant from their state supreme court and electorally secure introduce the most court curbing legislation.

Keywords:

• Court curbing
• state courts
• legitimacy
• judicial independence

Acknowledgments

I am grateful for the feedback received on this article from Rachael Hinkle and Mehwish Sarwari. I also wish to thank Trek Fulater and Francis Marrano for their work as research assistants.

Notes

1 Thirteen state house chambers had to be excluded for three reasons. AZ, MD, ND, NH, NJ, SD, VT, and WV were excluded because they have multimember free for all districts. The independent variable Safe Seat is only a comparable measure of electoral safety in races with a single winner in each district. Therefore, only state legislators elected in single member districts and multimember districts with posts are included. LA, ME, MS, and VA are excluded due to lack of complete ideology scores or vote share data. NE is excluded because they are a unicameral legislature, which is technically a senate. For a complete list of the states included in this study and the number of observations in each state, see Table A1.

2 Additionally, one Alabama legislator is missing in 2010, and one Connecticut legislator is missing 2010–12, due to a lack of ideology data on them. Three legislators are missing in Kansas 2011–12, four legislators are missing in Illinois in 2010, one legislator is missing in Illinois in 2012, one legislator is missing in Hawaii in 2010, two legislators are missing in North Carolina in 2010, and one legislator is missing in Utah in 2010, due to these legislators having no vote share because they were initially appointed to their seats.

3 When calculating the median justice, some ideological scores were rarely missing. In the case of missing data in states where there is gubernatorial appointment, I used the appointing governor’s ideology score when calculating the median justice. In states where judges are elected, I also used the governor’s scores if the missing justice was previously appointed to a lower court or temporarily to the supreme court by the governor. For missing justices in South Carolina, I used the ideology score of the median legislator of the entire legislative body in the most recent year the missing justice was legislatively elected.

4 The core findings of this article of an interactive relationship between the variables Safe Seat and Ideological Distance and that court curbing bill cosponsorship is driven by high legislative professionalism do not substantively change if the vote share threshold for electoral safety changes. Coding the legislator’s vote share as a continuous variable also does not substantively alter these relationships.

5 Of the five judicial method of retention variables Life Tenure was the base category used for the analysis. Changing the base category does not alter the results presented here.