State Legislatures, State High Courts, and Judicial Independence: An Examination of Court-Curbing Legislation in the States

Abstract

Central to the debate over whether or not to elect judges is the tension between judicial independence and accountability. Though we think of independent courts as being less constrained in their decision making, even highly independent judiciaries can be constrained by their legislative and executive counterparts. In this article, I examine one avenue of constraint—court-curbing legislation. I argue that court independence should increase the use of this legislation, as the other branches of the state government seek to check the power of the court. I find that court curbing is driven more by political conditions than the methods of selection and retention.