In recent years, the United States Supreme Court has delegated several important decisions to the states, or more specifically, to the state supreme courts. Of course, Dobbs get federal justice out of the abortion issue. After 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. These rights were apparently there all along, but there was no need to see them because of deer. Go figure!
Unsurprisingly, the stakes in state Supreme Court races have become much higher. Look no further than Wisconsinwhere a candidate ran and won on the not-so-subtle platform of protecting abortion rights. Dobbs unquestionably took federal courts out of the abortion business, but the focus of judicial abuse shifted to the next option – state courts.
A similar dynamic is at play when it comes to partisan gerrymandering. Rucho c. Common cause ruled that the United States Supreme Court would not resolve disputes over partisan gerrymandering. Rather, state supreme courts would decide these matters under state constitutions. These decisions, of course, may involve the electoral clause and the doctrine of the independent state legislature. But Moore v. Harper reaffirmed that state courts have extremely broad power to redraw maps in preparation for federal elections. Indeed, it will be extremely difficult for lower federal courts to hear challenges to these maps. Perhaps the only avenue for review will be through petitions for certiorari, which will be routinely denied. (Derek Mueller did this indicate A little after Moore was decided.) Once again, the importance of the state courts becomes even more important. Look no further than North Carolina, where the recently elected Republican state Supreme Court overturned “precedent” (but not the “judgment”) of the former Democratic majority.
As the unelected judiciary becomes depoliticized, the elected judiciary becomes more politicized. Overall, I agree with this change. As Justice Sutton explains, there are 51 imperfect solutions, and only that many imperfect state supreme courts, plus hundreds of imperfect state supreme court justices. Fortunately, it’s much easier to upgrade a state seat than to “reform” the highest court in the land. Yet I deeply worry about races like the one in Wisconsin where candidates have effectively prejudged cases. Neutrality, or at least the pretense of neutrality, is the foundation of any legal system. Otherwise, we are left with just one review boardwhich didn’t do too well in New York.
