Court-Packing and the Next Wave of Legislative Assaults on State Courts

When a court rules that a state law violates its state constitution, legislators who don’t want to accept that outcome generally have three options: appeal the ruling, revise the statute, or convince the public to amend their state constitution.

Last month, however, lawmakers in Utah chose instead to add two seats to the state’s now 7-seat supreme court, seemingly in the hopes that different judges would lead to different outcomes. Following a series of court rulings striking down a partisan gerrymander and imposing a remedial map for the 2026 midterms, Gov. Spencer Cox (R) signed the court-packing bill over the objections of the state’s chief justice.

And the legislature doesn’t appear to be done meddling with the court — a bill to create a new court to hear all constitutional challenges to state law is advancing quickly.

This legislative overhaul of Utah’s judiciary is brazen, but not unique. Republican legislators in both Arizona and Georgia added seats to their supreme courts in 2016 to make those courts more conservative. For nearly a decade, the Brennan Center has been documenting such legislative efforts seeking to weaken courts’ ability or willingness to serve as a meaningful check on the other branches. In 2025, state legislatures considered 117 bills across 25 states attacking the independence or powers courts and passed 15 of them, typically in response to rulings adverse to legislative interests in cases concerning gerrymandering, reproductive rights, and ballot measures.

Below are seven major stories and trends from 2025 involving legislative efforts to pressure, capture, or retaliate against state courts.

Venue Manipulation to Engineer Outcomes in Constitutional Cases

Court-packing is an especially blunt tool for insulating legislation from independent constitutional review. But in many states lawmakers have achieved the same end by passing bills steering constitutional litigation to preferred venues or judges.

In 2025, Arkansas enacted a law moving such cases away from circuit judges elected by voters in Pulaski County, home to Little Rock, and Montana legislators considered creating a new court to hear such cases before settling on a law requiring constitutional challenges be filed in the district represented by the sponsor of the at-issue law. In a rural state like Montana, which has many single-judge districts, the law effectively allows legislators to pick the judge who would be tasked with reviewing whether a statute complies with Montana’s constitution, mirroring an issue in the federal courts. Prior to the enactment of these laws, political officials in both states publicly criticized the trial judges that typically handle such cases as activist judges.

Unfortunately, judge-shopping shows no signs of stopping in 2026. After passing a law in 2025 overriding a Missouri Supreme Court rule to transfer original jurisdiction for constitutional challenges to the Missouri Court of Appeals, Missouri legislators are considering a bill that would require constitutional challenges be filed in Cole County, an area that includes the capital of Jefferson City, but also move Cole County to a more conservative appellate judicial district — reportedly in response to frustrations with court rulings.

Retaliation Against Utah Courts for Striking Partisan Gerrymander

The U.S. Supreme Court’s 2019 decision to close federal courthouse doors to partisan gerrymandering claims thrust state courts into the center of bitter political brawls over redistricting. Since then, state courts that have struck down gerrymandered maps have been met with legislative retaliation, from efforts to gerrymander state supreme courts to impeachment threats.

Utah’s court-expansion was preceded by a year of clashes between the judicial and legislative branches over redistricting. In March, Cox issued a lengthy veto of a bill that would have required the state’s chief justice to be reappointed by the governor and senate every four years, warning that he believed “we would eventually come to regret rejecting ancient wisdom and injecting our own politics into the independent judiciary.”

But following a ruling by the Utah Supreme Court allowing an injunction that blocked the use of an unconstitutionally gerrymandered congressional map, the governor signed a substantially similar law that subjects the chief justice to reappointment by the governor every eight years. (Previously, the chief justice was chosen by the Utah Supreme Court). Several months later, after a subsequent lower court ruling imposed a new congressional map for the 2026 midterms, Utah legislators adopted a resolution that “condemns” the Utah Supreme Court and district court involved in the redistricting litigation and “rejects” the court-ordered map. Lawmakers also threatened to impeach the district judge who issued the ruling.

Assault on Montana Courts Prompts Push for Nonpartisan Judicial Elections

Among the 25 states where legislators considered bills targeting the courts in 2025, Montana stood out for the sheer volume and breadth of such bills.

Following a string of legislative losses in high-profile cases involving abortion access, environmental rights, and legislative subpoenas of judicial branch documents, in 2024 Montana lawmakers established a select committee to “rein in Montana courts’ abuse of power.” Last year, the legislature considered dozens of bills put forward by the committee targeting the powers and independence of Montana’s courts. Among other things, legislators sought to implement partisan judicial elections; gerrymander, shrink, and strip jurisdiction over ballot measures from the Montana Supreme Court; and purportedly empower legislators to ignore judicial rulings. Even Marbury v. Madison, the landmark case establishing judicial review, was on the chopping block.

Compelling legislative testimony by the state’s chief justice killed the most damaging of these bills, including five that would have implemented partisan judicial elections. However, lawmakers did succeed in passing measures that enable judge-shopping in constitutional challenges to state law; remove key guardrails preventing misuse of judicial ethics procedures; allow political parties to contribute directly to judicial candidates in a state that has seen record-breaking levels of spending in recent judicial elections; and require Montana judges to use a more stringent standard to evaluate whether to issue a preliminary injunction or temporary restraining order — a tactic other states have used to disempower courts.

At the end of the legislative session, Republican leadership signaled continued interest in adopting partisan judicial elections in the future, which would make Montana the third state to do so since 2016. The looming threat prompted Montanans to move forward with a constitutional amendment that, if approved by voters, would require that Montana judicial elections remain nonpartisan.

Judicial Nominating Commissions as New Front in Abortion Politics

With state supreme courts now playing a significant role in shaping reproductive rights, some legislatures sought greater influence over the make-up of state high courts by eliminating or exerting more control over the commissions that recommend judges to fill judicial vacancies.

In Kansas, legislators placed a constitutional amendment on the August 2026 primary ballot that would abolish the state’s merit-based nominating commission, whose independent structure denies Kansas’s political branches majority control. Legislative supporters of the amendment have described it as a way to undermine abortion rights in a state whose courts have consistently upheld them.

Similarly, Oklahoma lawmakers took aim, as they did in 2024, at the state’s judicial nominating commission, which pro-life groups have described as a major impediment since the Oklahoma Supreme Court recognized a narrow right to abortion in 2023. A proposed amendment, which did pass one chamber, would have removed a partisan balance requirement from the commission, eliminating a key bulwark that helps to insulate such commissions from capture by political parties.

State Courts as Collateral Damage in Attacks on Citizen-Initiated Ballot Measures

As more national issues play out via citizen-initiated ballot measures, legislators have tried to prevent the public from acting as a check on legislative power by weakening judicial oversight of the ballot measure process.

In Missouri, multiple successful citizen-initiated ballot measures involved courts striking down or rewriting legally deficient amendment summaries written by Missouri’s secretary of state. In response, lawmakers introduced a bill that would have prohibited courts from enforcing certain ballot language requirements. They ultimately passed a version prohibiting courts from rewriting unlawful ballot language unless the secretary of state fails three times to correct the deficiencies. It was unanimously struck down by the Missouri Supreme Court last month.

And in Montana, where courts and the attorney general have also disagreed over whether ballot summaries rewritten by the attorney general comply with state law, a bill that passed one chamber would have stripped the Montana Supreme Court of its original jurisdiction over challenges to the Montana attorney general’s review of ballot measures. 

Erosion of Judicial Ethics Guardrails to Gain Leverage Over Judges

Legislators last year also continued to chip away at the safeguards that allow judicial ethics bodies to function independently — part of a broader trend of legislators misusing judicial ethics procedures to obtain leverage over specific judges whose rulings have frustrated them.

In November, Texas voters approved a legislatively referred constitutional amendment that empowered the governor to appoint a majority of the commissioners serving on the State Commission on Judicial Conduct. Previously, no single entity had the authority to appoint a majority, a principle that generally helps to prevent ethics commissions from being coopted by state political branches. Several years ago, Gov. Greg Abbott (R) removed two commissioners who voted to discipline a justice of the peace that refused to perform same-sex marriage.

And in Montana, where in recent years legislators have consolidated control over the judicial standards commission and filed baseless complaints about sitting judges, the legislature eliminated a prior prohibition on the publication of judicial ethics complaints during the pendency of an investigation. The law empowers political operatives to use ethics complaints as an electoral cudgel and positions Montana as a national outlier among judicial standards commissions. A second Montana law creates additional opportunities for legislators to put a thumb on the scale in favor of their preferred judicial candidates under the guise of judicial ethics. The law establishes a judicial performance evaluation commission to publicize assessments of judicial candidates on voter pamphlets. The commission will use broad evaluative criteria, such as “the maintenance of an open mind when considering issues that may come before a judge,” and 8 of the 11 commissioners will be appointed by the governor and legislative leadership.

On the Horizon: Civil and Criminal Penalties for Judges

Finally lawmakers in a small number of states signaled interest in a new tool for curbing judicial independence: civil and criminal penalties. A North Carolina bill would have imposed civil penalties of up to $10,000 on judicial officers who engage in diversity, equity, and inclusion practices, and a prior version of the bill would have treated such actions as a Class 1 misdemeanor. The bill came three years after North Carolina’s Judicial Standards Commission opened (and later dismissed) an ethics probe into Justice Anita Earls, alleging that comments she made regarding the lack of diversity among judicial law clerks and appellate advocates may have violated North Carolina’s Code of Judicial Conduct. In Texas, a bill would have imposed civil penalties against any public officer who modifies or suspends election procedures not expressly authorized by the Texas Election Code, with no carveout for judges adjudicating constitutional cases.

While neither measure was enacted into law, the proposals illustrate lawmakers’ willingness to escalate tactics amid ongoing disputes with state judiciaries. In fact, amid a long-running fight between Missouri’s legislature and judiciary over bail policy, Missouri legislators introduced a bill that would make it a felony for a judge to release a prior felon on bail if that person commits another felony while the prior case is pending.

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As state courts continue to adjudicate cases with national implications, state political branches are unlikely to relent in their attacks on judicial independence. But judiciaries are not powerless in the face of such assaults. Judges can — and have — spoken in defense of the judiciary to successfully defeat legislation. All state constitutions contain provisions protecting separation of powers and setting clear parameters around the structure of state judiciaries that legislatures cannot statutorily alter. In recent years, courts have drawn upon these provisions to strike down laws manipulating venue rules, supplanting local judges, and creating new courts. State judiciaries should continue drawing upon their state constitutions to protect their independence.

Michael Milov-Cordoba is a counsel in the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Michael Milov-Cordoba, Court-Packing and the Next Wave of Legislative Assaults on State Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 6, 2026), https://statecourtreport.org/our-work/analysis-opinion/court-packing-and-next-wave-legislative-assaults-state-courts