States across the country are considering legislation that would diminish the independence of their courts. Recently, Kathy Bonnifield, Program Officer at the Piper Fund, chatted with the Bay Area Democracy Funders Group about some of the threats to our courts and how philanthropy can respond. Join Kathy and an expert panel of speakers on October 3, 2019 at Fair Courts: The Threat to Judicial Independence in Polarized Times. Learn More >
Are fair courts like the Rodney Dangerfield of democracy?
KB: Haha, yes it’s kind of true. They too get no respect and they warrant way more attention! Very few people are aware of the coordinated attacks against state judiciaries in the United States, even though other systematic assaults on our elections garner much more attention. This lack of coverage and awareness belies the importance of judicial independence at the state level, even for people outside that state. If one were to create a playbook on how to destroy a democracy, attacking the independence of the judiciary would be high on the list.
Give me an example.
KB: Perhaps the clearest example is the important role state courts have in redistricting. If districts are redrawn to favor one party, the impact ripples to the national level because those lines ultimately determine who is in the U.S. House of Representatives. The U.S. Supreme Court recently ruled in Rucho v. Common Cause that state courts and state constitutions have the final say concerning redistricting. This means that state courts will have even a larger voice in redistricting and representation than they have in the past.
Which states are we seeing ignore assaults on judicial independence, in large part because of the Supreme Court’s ruling?
KB: The most dramatic jolts have been in Pennsylvania, Florida and Michigan. Pennsylvania is one of 26 states that has a constitutional clause that affirms “free and equal elections” or “free and open elections”. This type language served as a basis for the Pennsylvania Supreme Court’s 2018 ruling on redistricting. In that decision, the court determined that the districts were so gerrymandered that it violated the Free and Equal Elections Clause of the Pennsylvania Constitution. Following the ruling, members of the legislature initially refused to comply with an order to hand over maps, and bills were even filed to impeach some of the justices as a direct reprisal just because the state house disagreed with the ruling.
So what did funders do about PA?
KB: Piper Fund and our allies immediately responded, including facilitating calls between state leaders and national groups—including the Brennan Center-- to create a strategic response. Piper was able to use its rapid respond grantmaking to fund groups on the ground, who drew attention to the threat to the state’s separation of powers and its dire consequences for long-term judicial independence. In the end, the legislature complied with the ruling and the judges were not impeached.
What can funders do in other states?
I think that critical to the success of efforts like this is understanding that funders cannot use a cookie cutter approach and to really listen to groups within the state. Also, while Pennsylvania is an example of a response to a crisis, long-term investments to support coalitions in their efforts to educate the public on the importance of separation of powers and the role of courts are extremely effective method of inoculating against attacks on the judiciary.
What are some other ways of how pressure is applied to state courts?
KB: There are numerous examples of egregious assaults on the rule of law—court budgets, impeachment efforts, reducing the authority of the court, and attacking individual justices—are just the tip of the iceberg. In fact, this year the governor of Alaska used his line-item veto to cut the court’s budget in punishment for their ruling on abortion.
Is anyone fighting back?
KB: The number is increasing – currently, coalitions or networks in at least 12 states are actively working to protect our courts.
While the stealth attack on state judiciaries across America is distressing, the success of community-based groups working in states is reassuring, especially since so many of these victories are against very well-funded adversaries. These state-based coalitions have demonstrated how, with the proper logistical and financial support, a coordinated response can win asymmetrical battles. This has included engaging the public to understand that defending their judiciaries is an important priority and crucial to both democracy and the rule of law.
Looking forward to talking more on October 3.