Conservative state lawmakers waged an assault on state courts in 2022, introducing dozens of bills that seek to give themselves more power by preventing courts from being able to block unlawful abortion bans or election restrictions, in what appears to be a step in fascism’s “legal phase.”
A new report by the Brennan Center for Justice finds that lawmakers across 25 states considered at least 74 bills aimed at curbing state courts’ power this year, with five of those bills eventually becoming law.
These bills all appear to be related to the right’s current quest to hand total power to politicians while stripping away other officials’ ability to keep them in check, representing an attack on the concept of checks and balances in state government. They also appear to be attempts to set the stage for further extremism coming from an increasingly far right Republican Party, and in many cases relate to specific topics that the right is currently focused on.
For instance, 16 laws were specifically related to preventing state or federal courts from protecting abortion access, either barring courts from considering abortion bans at all or saying that abortion is banned in the state regardless of whether state or federal courts strike down a ban or mandate abortion access as the Supreme Court did under Roe v. Wade.
Gun prohibitions were also a target of legislators’ ire, and lawmakers considered about 20 bills that would have deemed void all federal laws, court rulings or executive orders that restrict gun access in any way.
Bills focused on other subjects similarly sought to give state politicians full power over things like vaccine mandates, gerrymandering election maps, or the teaching of slavery and race-related topics in schools; one bill, introduced in Iowa, sought to give the legislature the power to nullify presidential executive orders or federal court decisions by a simple majority vote. Some of these bills moved through committees in the state legislatures, but none have yet passed.
A slew of proposed legislation appears to be directly aimed at disrupting the court process and making it more partisan. Several bills in states with solidly red legislatures and governorships sought to give those branches more power in appointing judges, while others would outright transfer power currently granted to state supreme courts — over things like gerrymandering — to the legislatures.
“These measures undermine the critical role that state courts play in our democracy to ensure lawmakers do not overstep their authority and to act impartially when vindicating individual rights,” the Brennan Center wrote of the proposed laws.
The consideration of these bills is a continuation of similar attacks waged on checks and balances and state courts’ power in previous years. The Brennan Center uncovered last year that legislators had considered at least 135 bills aimed at giving legislatures more power and attacking courts in 2021, with 19 of those bills becoming law.
The willingness of conservative legislators to grant themselves more power in this way, deeming their whims to be the start and end of the law, has ties to the constitutional sheriff movement, in which an increasingly large number of county sheriffs believe that they, not the laws they are elected to enforce, are the ultimate authority on the law. The popularity of the constitutional sheriff movement surged after the 2017 mass shooting in Las Vegas, the nation’s deadliest-ever modern shooting, when sheriffs decided not to enforce gun laws put in place in reaction to the attack.
When seen as a whole, there appears to be an increasing ambition in the Republican Party to give more power to states and sap any legislative or executive authority from federal officials as long as those forces aren’t enforcing far right laws like abortion bans. This is a sign that the U.S. is in fascism’s “legal phase,” as fascism scholars have put it, as right wingers in power inscribe anti-democratic, far right policies into law. In order to empower the right, Republicans are attempting to rewrite the guidelines that keep the U.S. in a relative state of democracy.
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