Are Utah courts becoming “politicized?” Some conservative lawmakers think so — and they’d like to do something about it.
This year, Utah courts have issued decisions that have gone against the Republican-controlled Legislature. The Utah Supreme Court’s rulings on redistricting and on abortion angered political leadership. And a lower court later ruled that Amendment D, itself a response to a high court decision, would stay on the November ballot, but votes for it wouldn’t count.
Both Senate President Stuart Adams and Speaker of the House Mike Schultz accused supreme court justices of “undermining the constitutional authority of the Legislature” on the state’s abortion trigger law and derided the lower court’s decision as “policymaking action from the bench.”
“The court’s actions have introduced significant uncertainty into the electoral process, raising concerns about the impartiality and timing of judicial interventions,” they wrote on Sept.12 following a district court judge declaring ballot language for Amendment D void.
Back in August, as lawmakers gathered for the special legislative session that produced Amendment D, Republican Rep. Jordan Teuscher told reporters there was an appetite from his House colleagues to make judges more accountable to voters.
“There's a little bit of a disconnect right now between what the general populace thinks and what the judiciary might think,” he said. “Especially when the judiciary starts getting into that policymaking role, then they need even more accountability from the people.”
While no proposals have been made public, Teuscher said leadership is “looking at all options to ensure that the judges are accountable to people.”
Since judges don’t “stand for reelection every four years,” legal scholars like University of Utah law professor Paul Cassell can understand why people might feel like the courts are not accountable representatives of the people. “But there is a check on who exercises judicial power,” he noted, “and that, of course, is the legislature.”
In Utah, judges are nominated by the governor before ultimately being confirmed by the state Senate. Judges are then up for a retention election by voters at the end of each term of office.
Despite the feelings of some on Utah’s Capitol Hill, the desire to reform the judiciary does not have universal support among Republicans. Gov. Spencer Cox told reporters during his Sept. 19 news conference that he is not in favor of reforms like electing judges instead of the current appointment process.
“I don't believe our judiciary is perfect,” he said.
“I've certainly had some disagreements [with them], but it's also part of the system, which is great. We don't always get our way, and we have three branches of government for a reason, and those branches of government are supposed to be held in tension.”
For Cassell, the feeling that Utah courts are getting increasingly political is simply a factor of the nature of the cases brought before them.
“Once a lawsuit has been properly filed, [the courts] need to address the merits,” he said. “So I'm not really seeing strong evidence of politicization of our Utah courts right now. The courts in Utah are doing what they've always done, which is to decide cases and controversies brought to them.”
Cassell said it can feel like courts are getting more political for one simple reason: whether it’s abortion or redistricting, they’ve never been asked to rule on these parts of the state constitution before.
“There have been very few cases litigated on these provisions, and now litigants are bringing those cases, presenting them to the Utah Supreme Court, and the Utah Supreme Court is going to have to determine what those provisions mean,” he said. “So I'm not really seeing politicization so much as I'm seeing more and more cases presented to the court that are going to require a decision.”
Unhappy with the lower court’s decision on Amendment D, the state has appealed. The Utah Supreme Court will hear arguments on Sept. 25. Amendment A, which would alter the state constitution to give lawmakers more control over income tax dollars, faces a similar challenge. A lower court will hear the case later that same day. Based on the outcome there, it’s possible the decision could be appealed to the Utah Supreme Court as well.
