In recent years, the Supreme Court of the United States has devolved several important decisions to the states–or more precisely, the state Supreme Courts. Of course, Dobbs extricated the federal judiciary from the abortion issue. In the wake of Dobbs, several states have enacted constitutional protections for abortion. But in other states, state supreme courts have recognized a constitutional right to abortion in the state constitution. Those rights were apparently there all along, but there was no need to see them because of Roe. Go figure!
Unsurprisingly, the stakes of state supreme court races have become far more significant. Look no further than Wisconsin, where a candidate ran, and prevailed, on the not-so-subtle platform of protecting abortion rights. Dobbs unquestionably got the federal courts out of the abortion business, but the locus for judicial overreach shifted to the next option–the state courts.
A similar dynamic is at play with regard to partisan gerrymandering. Rucho v. Common Cause held that the United States Supreme Court would not resolve disputes about partisan gerrymandering. Rather, the state supreme courts would decide those issues under state constitutions. These decisions, of course, may implicate the Election Clause and the Independent State Legislature doctrine. But Moore v. Harper reaffirmed that the state courts have extremely broad power to redraw maps for federal elections. Indeed, it will be extremely difficult for the inferior federal courts to even hear challenges to these maps. Perhaps the only route for review will be through certiorari petitions, which will be routinely denied. (Derek Mueller made this point shortly after Moore was decided.) Once again, the significance of the state courts becomes even more important. Look no further than North Carolina, where the recently-elected Republican state supreme court overruled the “precedent” (but not the “judgment”) of the former Democratic majority.
As the unelected judiciary becomes depoliticized, the elected judiciary becomes more politicized. On balance, I am okay with this shift. As Judge Sutton explains, there are 51 imperfect solutions, and just that many imperfect state supreme courts, plus hundreds of imperfect state supreme court justices. Fortunately, it is much simpler to improve a state bench, than to “reform” the highest court of the land. Still, I worry deeply about races like the one in Wisconsin where candidates effectively prejudged cases. Neutrality, or at least the pretense of neutrality, is a bedrock of any judicial system. Otherwise, we are just left with a Council of Revision, which didn’t work out too well in New York.
Josh Blackman
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