Why Utah’s legislature is talking so much about the judiciary

• The Utah Legislature is considering a bill that would allow the governor to appoint the chief justice of the Utah Supreme Court.
• The attention the Utah Legislature has been giving to potential court reforms reflects a concern that the state’s judges have begun to prioritize the unexpressed intent of lawmakers even when they are at odds with specific constitutional provisions.
• The correct understanding of judicial review as reflected in early U.S. Supreme Court decisions requires courts to apply the provisions of the Constitution rather than extrinsic sources of meaning.
• Reconciling Utah court practice with the rightful duty of judges is a key legislative priority that extends beyond specific proposals considered so far.

On the Utah Legislature’s interim day last week, the Judiciary Committee considered a proposal to change the way the chief justice of the Utah Supreme Court is selected. Currently, as in 22 states, the justices on the court are chosen by the other members of the court. If approved, the proposal would make Utah like 13 other states whose chief justice is appointed by the governor. (The chief justice of the U.S. Supreme Court is similarly appointed by the president.) The proposal is consistent with the Utah Constitution’s grant of authority to the legislature to determine how the chief justice is selected from among the supreme court justices. 

The specific proposal, though, is not as significant as the underlying discussion about the role of the judiciary, of which this bill is a part.

During the last legislative session, the state’s elected representatives debated how to respond to state court decisions on a variety of issues in which judges have concluded that the unexpressed intent of legislators or voters justifies results at odds with specific constitutional language.

Whether such a practice is valid implicates the core of constitutional law, the principle of separation of powers where each branch of government is assigned duties and associated responsibilities and is constrained from taking on those of the other branches.

One of the great contributions of the constitutional system of the United States was that it “transform[ed] written fundamental law into the kind of law that could be expounded and construed in the ordinary court system.” This allowed for the practice of judicial review in which judges, consistent with the duty of their office, interpret constitutional provisions to ensure that other laws or government actions are consistent with them, stopping short of creating new laws since that is the province of the legislature.

As a history of one of the U.S. Supreme Court’s early cases notes, Chief Justice John Marshall recognized that this review “would be enhanced by having the written text of the Constitution as the sole standard for determining the validity of a legislative act.” This precluded a more sweeping invocation of “general principles” or abstract notions which would appropriately guide lawmakers acting to promote the public interest, not judges, whose role is to apply existing legal provisions even if they believe that those who made those laws were not acting wisely or well.

Chief Justice Marshall specifically argued, “It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.” He rejected the idea that “the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say.” Such a conclusion could only be justified in very rare circumstances.

By contrast, recent court decisions in Utah rely on judicial opinions about probable voter intent to justify disregarding specific constitutional provisions.

This is why the Utah legislature is paying so much attention to the state’s courts right now. The bill approved in committee last week is expected to be voted on in a special session next month. Whether it is approved or not, there is much more to be done to promote a legal culture in the state in which judges protect the integrity of the constitution by carefully adhering to its provisions.