Introducing State Court Report

A new forum for information, analysis, and commentary on state constitutional law

A casual news observer might regard the U.S. Supreme Court as the first, last, and only word on rights in the United States. But state courts and constitutions have a long history of innovation. As Sixth Circuit Chief Judge Jeffrey S. Sutton has documented, in the first 150 years of U.S. history, most constitutional rights litigation took place in the states. Today, 95 percent of all cases are filed in state courts.

Some of the most important modern rights, such as marriage equality, bubbled up from state courts into the federal system. In other issue areas, dissatisfaction with federal jurisprudence spurred states to diverge: After the U.S. Supreme Court closed the door on federal constitutional challenges to partisan gerrymandering in Rucho v. Common Cause, state high courts in New York, North Carolina, Ohio, and Pennsylvania all struck down gerrymandered maps under their states’ constitutions. Earlier, when the U.S. Supreme Court expanded states’ powers of eminent domain in Kelo v. City of New London, many state high courts strengthened protections against such takings. The Dobbs decision also looms large — with no federally protected right to abortion, state constitutions have taken on new significance. 

This is an important moment for state courts and constitutions. Innovation is happening in real time. What’s missing is a forum to analyze and contextualize developments in 50 state court systems. 

Enter State Court Report, a new initiative housed at the Brennan Center. This newsletter is the initial phase of a larger project we’re undertaking: the creation of an information and commentary hub dedicated to state courts and state constitutions in the 50 states. 

We’ll be featuring analysis from experts both inside and outside the Brennan Center who will bring an array of experiences and viewpoints. We’ll cover legal trends, cutting-edge scholarship, interpretative methods, and cases to watch. We’ll hear from judges, academics, journalists, and practitioners. Along the way, we’ll be compiling a database of notable cases. Together, we hope to build community and foster dialog, commentary, and research about an important but chronically underappreciated area of law. 

As we move forward, we hope to hear from you. Let us know what works, what doesn’t, and what other information you’d like to see. And please send us cases, articles, events, news, and issues that you think we should know about: StateCourtReport@brennan.law.nyu.edu. If this newsletter was forwarded to you and you’d like to sign up, please click here.

As the Brennan Center’s namesake, Justice William J. Brennan Jr., wrote, “State courts no less than federal are and ought to be the guardians of our liberties.”

Thanks, and we hope you enjoy!

Trends in State Abortion Aitigation 

Since the Supreme Court overturned Roe v. Wade in June, 34 lawsuits challenging abortion bans in 19 states have been filed under state constitutions and statutes. Harry Black writes, “Over the next year, state high courts across the country will begin to define the contours of their states’ laws with respect to abortion rights.” Plaintiffs are drawing on a variety of state constitutional and statutory provisions, including equal protection guarantees, rights to privacy, and religious freedom guarantees. Constitutional amendments — successful and unsuccessful — are also impacting litigation in some states. And in certain states that have previously recognized state constitutional protections for abortion, a looming question is whether changes to state supreme court majorities will lead to retrenchment. READ MORE

Get to Know Your State’s ‘Baby Ninth Amendment’

Thirty-three states have provisions guaranteeing the protection of unenumerated rights in their state constitutions. The first appeared in 1819 in Alabama, and states continued adopting them in the 19th and 20th centuries. Guest contributor Anthony Sanders of the Institute for Justice previews his upcoming book on these “Baby Ninth Amendments.” Despite their prevalence, state judges have rarely interpreted and enforced these provisions. “You wouldn’t be crazy to conclude that judges simply think Baby Ninths are a bad idea and so they don’t enforce them,” Sanders writes. “But that’s not their choice. Just as federal judges have a duty to enforce the First Amendment, state judges must enforce Baby Ninths.” READ MORE

State High Courts Advance Protections for Juvenile Defendants’ Rights

Last year, the U.S. Supreme Court watered down Eighth Amendment protections for juveniles facing life sentences without parole, ruling in Jones v. Mississippi that states can impose such sentences without a finding that the defendant is “permanently incorrigible.” However, recent cases in Michigan, North Carolina, and Washington show how state high courts are looking to state constitutions to protect juvenile rights. Douglas Keith and Madiba Dennie explain, “Several state courts are relying on their state constitutions to provide greater protections and insulate these rulings from further erosion by the U.S. Supreme Court.” READ MORE

Scholars Unpack State Constitutional History

In their scholarship roundup, Chris Leaverton and Douglas Keith recap three recent articles by political science and law professors that “unpack state constitutional history and innovation.” Erik Engstrom, Matthew Pietryka, and John Scott measure how much of each state’s constitutional language was borrowed from other states and how different factors influence when such borrowing occurs. Maureen Brady examines the published records of state constitutional conventions, finding that they are frequently incomplete and inaccurate. John Dinan explores the history of state constitutional conventions, identifying the political conditions necessary for those conventions to occur. Each of these articles raises important questions for courts and advocates grappling with when and how to use historical sources. READ MORE

What Else We’re Reading (and Listening To)

• Do state courts need different interpretative methodologies? The Wisconsin Law Review has a new special issue, “Interpretation in the States.” 

• On December 7, the U.S. Supreme Court heard arguments in Moore v. Harper, a case that could leave state courts and state constitutions powerless in matters relating to federal elections. The Conference of Chief Justices weighed in with an amicus brief, arguing that the Constitution’s Elections Clause does not prevent state constitutions from regulating laws for federal elections.

Notable Cases

Anonymous Plaintiffs v. Members of the Medical Licensing Board of Indiana, Marion Superior Court 

Preliminarily blocked Indiana’s near-total abortion ban on religious freedom grounds (Indiana’s Religious Freedom Restoration Act). Read more in Reuters. 

Sistersong v. State of Georgia, Georgia Supreme Court

Allowed a six-week abortion ban to go into effect pending appeal. Read more in the Atlanta Journal-Constitution.

Connecticut v. Qinxuan Pan, Connecticut Supreme Court 

Clarified procedures for bond modification proceedings in criminal cases, including requiring enhanced findings and a more extensive hearing process than initially held at arraignment. Read more in the CT Mirror. 

State of Tennessee v. Booker, Tennessee Supreme Court 

Ruled that mandatory life sentences for juvenile defendants violate the U.S. Constitution’s Eighth Amendment. Read more in the Tennessee Lookout. 

Delgado v. State, New York Court of Appeals 

Ruled that New York’s Committee on Legislative and Executive Compensation, which determines whether to increase the pay levels of legislators and certain statewide officials, was not an unconstitutional delegation of legislative power. Read more from the Institute for Justice. 

Netzer v. State, Montana Supreme Court 

Upheld denial of a preliminary injunction against a state law banning workplace vaccine mandates, but remanding to consider a single subject rule claim. Read more in the Helena Independent Record.

Graham v. Adams, Franklin Circuit Court

Upheld congressional and state house maps challenged as a partisan gerrymander. Plaintiffs are seeking direct review by the Kentucky Supreme Court. Read more in the Associated Press.