Four former Utah Supreme Court justices, with more than 40 years of combined experience dating back to the 1980s, sat down with the Deseret News’ editorial board this week to discuss what they see as overreach amid the Utah Legislature’s efforts to reform the judicial branch.
Republican leaders in the House and Senate have made apparent their intention to overhaul the state’s judiciary through several bills.
This includes one piece of legislation already signed by Gov. Spencer Cox — a court expansion bill that added two more judges to the state Supreme Court, two judges to the state Court of Appeals, and one additional district court judge each in Salt Lake City, St. George and Provo.
The bill’s chief sponsor, Sen. Chris Wilson, R-Logan, said it was the “biggest commitment” Utah lawmakers have made to the state’s judiciary.
When asked what it says about the House and Senate’s priorities to be sending this bill so quickly through the Legislature, Senate President Stuart Adams said, “It tells you we value the courts.”
On Monday, the justices didn’t see it that way.
The other bills still being considered have also drawn heavy skepticism from the Utah State Bar Association.
Those bills include HB 262, which would require judges to reach a 67% approval threshold in retention elections for judges to return to the bench, which would be the highest percentage in the nation.
Another would establish a constitutional court that would serve like an appellate court with three judges on its bench. The bill’s sponsor said that setting up a court specifically concerned with constitutional questions will allow the judges appointed to become experts and speed up the case process.
The judges took issue with that, saying it threatens to politicize the process and tilts away from the current balance that exists in Utah.
When asked about why there are so many bills this year affecting the judicial branch, the leaders of the Utah House and Senate said it was to make courts more accountable to the people of Utah.
“The Legislature believes in checks and balances and in respecting the distinct and independent roles and responsibilities of each branch of government. That respect, however, does not eliminate the need for accountability,” Adams and House Speaker Mike Shultz told the Deseret News in a joint statement.
Justices say bills will make courts less responsive to public’s needs
But the justices said they think the Legislature’s approach would make the courts less responsive to the needs of the people of Utah.
On the bill creating a constitutional court, former Utah Supreme Court Chief Justice Christine Durham argued on Monday that a specialized court would threaten the random judge assignment already in place and put pressure on judges in politically sensitive cases.
Former Associate Chief Justice John Pearce, who stepped down from the state’s Supreme Court at the end of last year, added that it “gives the state, and only the state,” the option to move their case to the specialized court if the state is unhappy with the judge assigned.
“To legislate as a litigant is to attempt to put your finger on the scale of justice. To want to select which judges don’t decide your cases is to want something every litigant would love,” Former Justice Michael Zimmerman added. “So as litigants, you’re not legislating for the common good. You’re legislating because you’re an unhappy litigant.”
Tension between court, Legislature
The justices said they believe lawmakers are bringing these bills forward because they are unhappy with some of the recent decisions made by the courts — especially with those related to Proposition 4, an initiative to overhaul the way Utah’s congressional districts are drawn.
In an August 2025 ruling 3rd District Judge Dianna Gibson threw out the state’s congressional map, replacing it with a map put forward by plaintiffs. This came after the Legislature hurried through a new map in an attempt to comply with an earlier ruling made by Gibson.
Gibson’s ruling followed the state Supreme Court’s new interpretation of the state Constitution with regards to ballot initiatives. The court said lawmakers are prohibited from amending initiatives that reform government, making them a wholly new class of laws.
When legislative leaders were asked about the justices’ concerns, Schultz and Adams pointed out that law firms linked to the former justices are currently involved in active lawsuits against the state over various issues, including redistricting, abortion access, and women’s sports.
“The reaction from former justices, now private attorneys, underscores why the Legislature is focused on greater transparency and accountability in the judiciary,” Schultz and Adams said. “These critiques come from individuals who no longer serve on the bench and who now operate in private practice, financially benefitting from actively litigating against the state on issues they once oversaw as justices. This raises the obvious question of whether their critique is about finding the best policy for the state of Utah or being self-serving.”
The fine line between law and politics
The justices said accusations of “legislating from the bench” or “activist judges” are not new. They reflect a long-standing tension between those who write the law and those tasked with interpreting it — a conflict that exists as much in state courts as it does in the federal judiciary because of the uniquely American system of checks and balances.
Durham, who sits on the Judicial Performance Evaluation Commission, a state body that evaluates the performance of judges who are up for retention and shares the finding with the public, said about Utah’s courts that “there’s very little evidence that there is bias or difficulty with trustworthiness.”
“If an activist judge simply means taking the language in the Constitution, interpreting it, and basing an opinion on it, I think it’s improper and unfair to challenge that judge as an activist judge, even though I think that happens to judges all the time on both sides,” she said.
But many in the Legislature and community view recent rulings — including last fall’s decision in the redistricting battle — as outcome-driven rather than detached legal analysis.
“When our Supreme Court ruled that the initiative process had superiority over the statutory process, they destroyed the Republic, in my mind,” Adams told the Deseret News. “And that’s what’s caused the chaos.”
But Durham said judges are just doing their jobs.
Legislatures were “furious about the trial judge who made the initial rulings with respect to gerrymandering” that was “decided on constitutional grounds,” she said.
“They went up to the Utah Supreme Court for an examination under appeal to the state Supreme Court,” and weren’t happy with the decision prohibiting lawmakers from amending ballot initiatives in many circumstances. So, Durham said, “they decided it was unconstitutional.”
Former Justice Constandinos Himonas, said Monday that if rulings go the Legislature’s way, “they applaud the decisions” and it isn’t considered “legislating from the bench,” he said. But because that isn’t what happened, the GOP-led Legislature then “accuses you of legislating from the bench ... but from a judge’s perspective,” he said, “you’re just trying to do the best job that you can.”
A plea to ‘take a pause’
Pearce told the Deseret News that news coverage about the strain between the courts and the Legislature should not be pitting the branches against one another, but rather, looking at it through the lens of the people who are affected.
“We need to think about what this does to the people of the state of Utah. It’s their judiciary,” Pearce said. “These structural changes have real ramifications about who serves and how they serve and the independence with which they can serve.”
Referring to himself and the former justices beside him, he said, “This is a bunch of judges concerned because they can see what these structural changes will do for the cases that people will bring to their courts.”
With less than a month left in the legislative session, Pearce’s request of lawmakers is to “take a pause” and contemplate the real necessity for each bill introduced.
“Is the motivation for this law because we’re a disgruntled litigant,” he said, “or because we think we are instituting a change that will be beneficial for the way justice is administered in the state of Utah?”
In their statement to the Deseret News, Schultz and Adams say their approach will restore trust in the courts.
“The Legislature’s approach is straightforward: strengthen the courts so they work better for the people of Utah. By increasing resources and improving transparency, we are ensuring cases are handled efficiently and fairly,” they said. ”This is about restoring trust and confidence in the justice system, so Utahns know it serves the public interest above all else.”
But Zimmerman said that public policy should be made “after due deliberation, not in the middle of controversy ... What are the chances that this patchwork is going to actually enhance the administration of law today, for tomorrow, for the benches of the future, and for the citizens of Utah?”