Power Play
The Utah legislature plays hardball with the courts
On Wednesday, the Utah Supreme Court announced that it would hear legal challenges to a new, three-judge court recently created by the state legislature. On Thursday, Governor Spencer Cox tacitly endorsed the state Republican Party’s effort to oust two state Supreme Court justices in this November’s retention elections, telling the Deseret News that “this is how the system should work.” These two developments were only the latest salvos in a bitter battle between the legislature and the judiciary over Proposition 4, a 2018 ballot referendum that outlawed partisan gerrymandering. Below, I summarize the retaliatory efforts of the legislature and propose a preferable path to judicial reform.
Summary
During its most recent session, the Utah State Legislature passed two bills to restructure the judiciary. In January, Governor Spencer Cox signed SB134, raising the total number of justices on the state Supreme Court from five to seven. In addition to expanding the Supreme Court, SB134 added two justices to the Court of Appeals and three additional judges to the district courts. (Legislators added the three district court judges after Chief Justice Matthew Durrant, in his state of the judiciary address, requested increased support for district courts.)
Then, in February, Cox signed a measure, HB 392, that creates a new, three-judge court focused exclusively on adjudicating lawsuits that challenge state laws as unconstitutional. Under the terms of the law, if the attorney general, governor, or state legislature is subjected to a lawsuit, they can redirect that lawsuit to the constitutional court. The legislation does not extend that prerogative to the plaintiff. Only state officials can decide whether or not to move a given case from a district court to the constitutional court. Although the initial version of the legislation would have created a permanent court, the version that passed stipulates that each time the court is called into action, a random set of three district court judges is selected to hear the case.
Why is the legislature restructuring the judiciary? To answer this question, we have to go back to 2018, when Utah voters narrowly approved Proposition 4, which created an independent redistricting commission. In 2020, the state legislature responded to that referendum by passing a law that undermined it. Specifically, the partial repeal of Proposition 4 (SB 200) permitted the legislature to engage in partisan gerrymandering and to create new electoral maps without first releasing them to the public. In 2021, the state legislature drew its own electoral maps, ignoring the recommendations of the independent redistricting commission. Most controversially, the legislature’s map split Salt Lake County, a blue pocket in an otherwise red state, into four electoral districts.
Then came the lawsuits. In early 2022, a coalition including the League of Women Voters and Mormon Women for Ethical Government filed a lawsuit challenging both SB 200 and the subsequent electoral maps. The lawsuit alleged that SB 200 violated the Utah Constitution, specifically the constitution’s provision that “all power is inherent in the people . . . and they have the right to alter or reform their government as the public welfare may require.” In other words, if the people of Utah voted to impose certain restrictions on the drawing of electoral maps, the state legislature had to respect that vote.
Two years later, in July 2024, the Utah Supreme Court agreed with the plaintiffs, and a year later, in August 2025, district judge Dianna Gibson threw out the legislature’s 2021 map on the grounds that it violated Proposition 4. In her opinion, Gibson wrote that “because legislative power is shared co-equally and co-extensively between the Legislature and the people . . . the people have the fundamental constitutional right and authority to propose redistricting legislation that is binding on the Legislature.”
In November, after giving the legislature time to redraw a congressional map that would satisfy the requirements of Proposition 4, judge Gibson rejected the legislature’s revised map in favor of one drawn by the plaintiffs, Map 1. Finally, this past February, both the Utah Supreme Court and a federal court upheld Gibson’s decision, meaning that as things stand now, Map 1 will be used in this November’s congressional elections.
Analysis
The legislature should focus its reform efforts on the priorities set forth by the judiciary.
To the extent that these reform are about efficiency—and the legislature claims that they are—solutions exist that would be amenable to both the legislature and judiciary. In January, during his State of the Judiciary address, chief justice Matthew Durrant submitted his own set of requests to make Utah’s court system more efficient. Durrant’s wish list included adding eight district court judges, one juvenile court judge, four commissioners, and one or two court of appeals judges. In other words, Durrant conceded that the judiciary could benefit from more judges, but indicated that those justices were not needed on the Supreme Court. John Pearce, formerly an associate justice on the Utah Supreme Court, echoed Durrant’s argument, noting that “if we’re really concerned about the efficiency of the judiciary, there are places where money would be much better spent than at the Supreme Court.”
The legislature and Governor Cox went ahead and expanded the Supreme Court anyway (they also added two more appeals court justices and three district court judges), but they would do well to heed the cautions of Durrant and Pearce going forward. Again, if this is about efficiency, then the state can pursue that objective without arousing the public’s suspicion. The way to do that is to collaborate with the judiciary, not antagonize it.
Utah Republicans should stop fighting for a gerrymandered electoral map in court. This would indicate that their efforts at judicial reform were made in good faith.
As noted above, there are good reasons to expand the size of the judiciary. And in due time, there may even be good reason to expand the size of the Utah Supreme Court (though it is far from clear that doing so would expedite the judicial process). The problem is that so long as Utah Republicans are engaged in an effort to preserve a gerrymandered electoral map, any attempts at judicial reform are likely to prove controversial. That is, until Utah Republicans accept Proposition 4, as well as the judicial decisions that continue to uphold it, their efforts at reform will be justifiably understood as an effort to weaken the independence of the judiciary.
The electoral costs of accepting Proposition 4 are real—under the map selected by Judge Gibson, Utah’s congressional delegation would lose a Republican seat—but they are outweighed by the benefits. Accepting Proposition 4 would demonstrate to Utahns that the state legislature honors the will of its voters, even when it runs counter to the legislature’s own preferences. That in turn would make Utahns of all stripes more likely to assume that the legislature is acting in good faith, even when it has to make unpopular decisions.
The Utah legislature should ignore Donald Trump.
It is worth noting that the redistricting battle in Utah, deeply relevant to the controversy over judicial reform, is also of special interest to President Trump and his allies. In August, after Judge Gibson ruled that the legislature had to redraw its electoral maps, the president called Gibson a “Radical Left Judge” (Gibson was appointed by Republican governor Gary Herbert), adding that “all Citizens of Utah should be outraged at their activist Judiciary, which wants to take away our Congressional advantage.” More recently, Trump endorsed the effort to repeal Proposition 4. What this suggests is that the Utah legislature’s efforts to reform the judiciary have been undertaken, at least in part, to please the president.
Needless to say, the Utah legislature is beholden to Utahns, not the president of the United States. Helping the president maintain his congressional advantage lies far beyond the scope of state legislators’ responsibilities. The question that the legislature needs to ask itself is whether reforming the judiciary will benefit the residents of Utah; the effects of such a reform on the president of the United States are entirely immaterial.