The conclusion of the 2025 legislative session also ended debate over a slew of bills aimed at the Utah Supreme Court. However, the Legislature was right to be concerned about issues implicating the separation of powers. Going forward, it must ensure that respect for judicial independence and judicial restraint guides its efforts.
In this session, the Utah Bar Association and even sitting justices on the Utah Supreme Court publicly opposed bills that they argued directly impacted the judiciary. The controversy was resolved near the end of the session, but that resolution left important underlying constitutional questions unaddressed.
The appropriate framework for addressing those questions involves two interrelated principles: judicial independence and judicial restraint.
Judicial independence is the principle that judges must be able to faithfully apply the laws enacted by the people and their representatives without external pressures that would thwart their critical role.
Judicial independence does not rest on an assumption of judicial infallibility. It protects the judicial function, not the status of judges or lawyers. Thus, judicial independence is consistent with the principle of separation of powers and, specifically, the checks that other branches have on the judiciary.
However, judicial independence is threatened by legislative and executive branch actions exceeding their constitutional authority and by unfair and baseless attacks on the integrity of judges. That was the concern raised during the legislative session, though it was overwrought in almost every instance.
However, one threat to judicial independence did not get attention during the session, perhaps because it comes from an unlikely source. Judicial independence can be harmed when judges engage in lawmaking “rather than fairly deriving (legal conclusions) from governing texts.” When this happens, it subjects the judges “to intensified political pressures” by implicitly inviting politicians and advocacy groups to consider judges as potential collaborators in lawmaking.
This latter point brings us to the second critical principle, judicial restraint. In our constitutional system, the law is made by the people and their representatives in written form. Judges construe the meaning of these laws as they apply in specific disputes but are not authorized to supply meanings beyond those texts. That is true even when the judges believe the written law is misguided (as it sometimes is).
Implicit in the session’s debates was legislative concern over a recent decision by the Utah Supreme Court to shield ballot initiatives from legislative oversight. The court sublimated a clear constitutional text — that provides the state legislature with the power to make laws — to an unwritten meta-principle of promoting voters’ subjective intent (as determined by judges).
That approach is at odds with the role of judges in our constitutional system. So, the legislature is free to question its propriety. Indeed, efforts to respond are a positive step in reclaiming judicial independence by encouraging the justices to eschew lawmaking.
The intertwined principles of judicial independence and judicial restraint should guide future legislative efforts.
For instance, the Legislature should be careful not to overstate concerns with the judiciary. Judges make mistakes and can usually be trusted to correct them.
Recent attacks on the U.S. Supreme Court also demonstrate that the Legislature must be extremely careful not to undermine judges who make correct decisions but whose commitment to constitutional principles runs afoul of temporary and misguided popular opinion or the efforts of interest groups to protect their narrow interests.
At the same time, the Legislature need not just accept judicial overreach.
Getting the balance right will not be easy. A good start would be for legislators to work to understand and carefully articulate the role of judges. This understanding would allow concerns about specific decisions to be clear and principled rather than ad hoc.
It would also allow the Legislature to accomplish its constitutional roles better regarding the judiciary. For instance, the state Senate has the responsibility to confirm judicial nominees. Questioning has been sparse in the past, but a clear understanding of the judicial role would equip the senators with relevant questions about a nominee’s judicial philosophy.
The Legislature is also responsible for correcting laws in response to judicial decisions. An appropriate articulation of the role of courts would allow the Legislature to know when it should conform the law to judicial decisions or amend laws to correct judicial mistakes.
This understanding could help both branches to interact more productively and respectfully without abandoning essential constitutional protections and responsibilities. As important as these considerations are, the judiciary must be careful to carry out its unique role without veering into policy-making, even when doing so seems justified by a desire to carry out lawmakers’ intentions.
There is no reason to assume that Utah judges will not embrace this role, but there is no reason not to encourage a course correction when they do not. Constrained by these principles, the branches of government can secure a culture of fidelity to the state’s constitution and effectuate ordered self-government.