Imagine you hire a manager to run your business. You hand them a detailed, written rulebook. But instead of following it, the manager decides they know what is best for your company. They start crossing out your rules, writing in their own, and running the business exactly how they see fit.
How long would that manager keep their job? You would fire them immediately.
Yet, as Wyoming voters, we tolerate this exact behavior from our state judiciary. We do our civic duty. We go to the ballot box. We elect representatives to go to Cheyenne and pass conservative laws that reflect our values—whether it is protecting life, securing our elections, or defending our constitutional rights.
But increasingly, after the votes are counted and the laws are passed, those laws are quietly erased. Not by the voters, and not by the legislature. They are vetoed by unelected lawyers wearing black robes.
How do they pull this off? They do it through a legal magic trick called the "balancing test."
Instead of reading the plain, black-and-white text of the Wyoming Constitution and our state statutes, courts import judge-made standards—terms like "strict scrutiny," "balance of equities," or "minimal burdens." These phrases appear nowhere in our laws. They are subjective scales, invented by judges over decades, that allow courts to weigh a democratically enacted law against their own personal sense of what is "reasonable."
When a judge decides a law fails their personal balancing test, they strike it down. The result is a total subversion of the separation of powers. The courts are no longer acting as neutral umpires calling balls and strikes; they are stealing the legislative pen and acting as politicians.
Our State Constitution was supposed to have a safety valve for this: the judicial retention election. But let’s be honest with ourselves. When you reach the bottom of your ballot and see the question, “Shall Judge X be retained in office?”, you are flying completely blind.
Unless a judge is caught in a scandalous headline, their actual courtroom record is a black box. The primary group telling you how to vote is the Wyoming State Bar, which releases an insider "Advisory Poll" rating judges on vague traits like "temperament." It is a rigged game where lawyers rate the very judges they have to appease the next morning. It tells the public absolutely nothing about whether a judge is actually following the law or rewriting it.
Because voters have no real information, they universally check "Yes" by default. A system designed to be a democratic check and balance has devolved into a rubber stamp for lifetime appointments.
We cannot fix a rigged game simply by hoping for better judges. We have to rewrite the rules of the game so that judicial activism becomes a literal violation of the law.
Transparency is the first step. We must strip the State Bar of its monopoly on judicial evaluations. Wyoming needs an independent, citizen-led Judicial Performance Commission that publishes a real public dashboard before every election. Voters need objective metrics: a judge’s reversal rate, their docket delays, and plain-English summaries of when they have used judge-made tests to strike down the legislature's work.
But transparency is not enough. We must permanently reclaim the voters' constitutional power by binding the judiciary to the plain text.
We cannot achieve this with a standard statute, because activist courts will simply strike it down. We need the Wyoming Legislature to put an "Interpretive Mandate" Constitutional Amendment on the next ballot. This amendment would serve as the ultimate Contract with Wyoming, completely changing the rules of engagement for the bench.
First, it would enact a strict Textualist Oath. Before anyone is handed a gavel, they must publicly swear to construe the Constitution and state laws strictly according to their plain, original text. They must explicitly vow not to substitute their own policy judgments or imported balancing tests for the written law. This acts as a foolproof litmus test: if a nominee refuses to swear to read the law as written, they disqualify themselves.
Second, the amendment must arm the legislature with a usable weapon to enforce that oath. Currently, the legislature can impeach a judge for "malfeasance," but the term is so vague that lawmakers are terrified to use it for fear of looking political.
This amendment would constitutionally define "malfeasance." It would explicitly state that if a judge uses extra-textual balancing tests like "strict scrutiny" to bypass the law, they have broken their oath and committed constitutional malfeasance. This takes the politics out of impeachment. The legislature wouldn't be firing a judge over a political disagreement; they would be firing them for a breach of contract.
Getting this amendment on the ballot requires a two-thirds vote in Cheyenne. To conservative lawmakers frustrated by courts vetoing their hard work: this is your shield. This amendment takes your constitutional power back.
To the voters: this is the easiest ballot question you will ever face. It simply asks, “Should Wyoming judges be legally required to follow the law exactly as it is written?”
The legal establishment will fight this tooth and nail. They will claim it handcuffs the courts. But they are wrong. It handcuffs the activists. It returns the power where it belongs: to the written law, to the legislature, and ultimately, to you.
Fred Harrison is an attorney in Cheyenne and served in the Wyoming Legislature from 1982 - 1992. He can be reached at: Fred.Harrison@fjhlawoffice.com
