by Zachary Clopton
Public confidence in the U.S. Supreme Court is plummeting. At least, that’s what opinion polls tell us in the wake of the court’s decision to overrule Roe v. Wade. Protests at the court and the homes of the justices further reflect growing discontent with the court’s jurists.
One outlet for this discontent has been a call to get state courts to recognize important rights under state constitutions. Even if there’s no right to privacy or abortion in the U.S. Constitution, state judges may find one in the constitution of New York or California or Michigan. State supreme courts, the theory goes, can save us.
But this approach is wrong, or at least oversold, because it promotes judicial lawmaking over more democratic solutions.
State courts are important. In the short run, advocates should pull every lever available to protect substantive rights. If that includes state courts, so be it. I would volunteer my services to anyone trying to litigate these issues in state court.
But in the long term, empowering state supreme courts is misguided. Not only is this approach piecemeal at best, but it also feeds into the notion of judicial supremacy that created these problems in the first place.
Judicial supremacy is the idea that courts, and the Supreme Court in particular, should be the last and final arbiter of important policy questions. Judicial supremacy prioritizes the courts over legislatures, agencies and popular movements.
Judicial supremacy is at the heart of the problem we are currently facing. To be sure, part of the critique of the U.S. Supreme Court is substantive. The court got it wrong on abortion and other important questions. But part of the critique is more institutional: These important questions should not be left to the whims of five (or more) unelected bureaucrats appointed for life because some other bureaucrat happened to die in office or retire at an opportune time.
An emphasis on state supreme courts uncritically accepts judicial supremacy. But as August’s vote in Kansas showed, better solutions may be found in legislation or popular referendums. Or maybe the best solutions aren’t law at all, but social and cultural movements. Perhaps durable protections for reproductive rights require a mass movement, not a one-off court decision.
Focusing on state supreme courts eschews these alternatives, and it puts our fate in the hands of the least democratic branch. Even if this works today, there is no guarantee that these courts won’t turn their backs on important rights in the long term.
Reinforcing judicial supremacy at the state level also could undermine efforts to fight that norm at the federal level. There is a good case to be made that the U.S. Supreme Court itself is a major threat to democracy and the rule of law. Attempts to counteract that threat likely will require rethinking the legitimacy of judicial lawmaking.
Raising three cheers when a blue or purple state supreme court votes in favor of abortion rights or same-sex marriage could undermine those efforts, making it difficult to argue against entrusting courts with important questions of social policy.
It’s also worth noting where the push for state court solutions is coming from. Among the most well-known advocates of state constitutional law solutions were William Brennan and Hans Linde decades ago, and Jeffrey Sutton and Goodwin Liu today. All are or were judges. Three have served as supreme court justices: Brennan on the U.S. Supreme Court and Linde and Liu on state supreme courts. And Sutton is the chief judge on the United States Court of Appeals for the 6th Circuit. Surprise, surprise — judges favor judicial supremacy.
Also supporting this movement is a generation of lawyers educated in the shadow of the Warren Court, who are almost ideologically committed to the idea that courts can be the leaders of progressive change. Even if that were true of the Warren Court, it is not true today, and it will not be true any time soon. If you’re a lawyer, you should help argue that your state’s constitution protect abortion. And if you’re a citizen, you should be relieved if your state supreme court agrees. This is an all-hands-on-deck situation.
But in the long term, salvation is not coming from supreme court justices, whether in D.C. or the 50 state capitals. Rather, taking those justices down a peg — and bolstering more democratic solutions — might be the best path forward.
