Lawmakers explore ways to weaken state judges, upend landmark case law

TOPEKA, Kansas - In several Republican-led state legislatures, lawmakers are advancing measures to curb judicial authority, marking a growing power struggle between the courts and elected officials. 

GOP lawmakers move to curb judicial power at the state level

What's next:

Proposals include limiting courts’ ability to determine constitutionality, changing how judges are selected, and reducing judicial deference to government agencies.

While efforts to rein in the judiciary are not new, experts note that this latest wave comes as President Donald Trump faces multiple legal challenges, with his administration arguing that courts are overstepping their role through judicial activism.

What’s at stake: Courts’ power to decide constitutionality

What we know:

A Montana legislative committee has advanced a bill that challenges the landmark 1803 Supreme Court ruling in Marbury v. Madison, which established judicial review—the courts’ ability to decide whether laws are constitutional.

The bill, sponsored by Republican Rep. Lee Deming, claims that no single branch of government has the exclusive authority to determine constitutionality. It follows a series of Montana court rulings striking down GOP-backed laws, including restrictions on abortion access and a ban on gender-affirming care for minors.

Similar legislation is being considered in Kentucky, Tennessee, and West Virginia, according to Plural, a legislative tracking service.

What we don't know:

It remains unclear whether these bills will pass or if they will withstand legal challenges. While many proposals to curb judicial authority have been introduced over the years, most fail to gain traction, said William Raftery, an analyst at the National Center for State Courts.

Kansas GOP pushes to change Supreme Court selection process

The backstory:

Republican leaders in Kansas are reviving efforts to change how state Supreme Court justices are selected, citing frustration with rulings on public school funding, the death penalty, and abortion rights.

Currently, Kansas uses a merit-based system where a commission controlled by lawyers selects nominees for the governor to choose from. GOP lawmakers want to return to direct elections, a system Kansas used before 1960 and still followed in 22 states.

If lawmakers approve the change, voters would need to approve a constitutional amendment to implement it.

Oklahoma and Missouri consider other judicial limits

Dig deeper:

In Oklahoma, a proposed bill would limit judges’ ability to defer to government agencies when interpreting laws, a move that echoes a recent U.S. Supreme Court ruling that sought to curb administrative overreach. 

At least 20 states have already adopted similar laws or court rulings, according to Ballotpedia.

Meanwhile, in Missouri, House Speaker Pro Tem Chad Perkins (R) proposed a bill aimed at removing a circuit court judge whose rulings he opposed. 

The measure, which would reduce the number of judges in a particular judicial circuit from four to three, was seen as a direct move against Judge Cotton Walker, who had issued key rulings on marijuana legalization and abortion rights ballot measures.

Perkins later put the bill on hold, citing concerns over the circuit’s case backlog, though he reiterated his displeasure with Judge Walker’s rulings.