Welcome to State Court Report

The new commentary, news, and resource hub covers state constitutional developments nationwide.

Welcome to the State Court Report newsletter.

I’m thrilled to welcome new readers — and welcome back old ones — during a very exciting week for State Court Report. On Tuesday, we launched statecourtreport.org, the first and only website dedicated to covering state constitutional cases and trends in high courts across the country.

In addition to our regular content — case analyses, explainers, scholarship roundups, interviews, and more — we’ll be featuring a series of essays reflecting on different aspects of our state court system. Today, I am honored to share essays from Eric H. Holder Jr., who served as the 82nd attorney general of the United States, and Bridget Mary McCormack, the president and CEO of the American Arbitration Association and the former chief justice of the Michigan Supreme Court. McCormack also serves on State Court Report’s advisory board — more on that below.

Holder’s essay offers a warning. He writes, “An alarming pattern is unfolding across the country that threatens not only the independence of state courts but also our democracy.” The threat, he argues, is from state legislators and other elected officials. In recent years, many have defied court orders, targeted state courts’ independence through legislation, and embraced the “independent state legislature theory” (now repudiated by the U.S. Supreme Court), which would have stripped state courts of their ability to enforce state constitutions in matters relating to federal elections. “It is no coincidence,” he notes, “that this pattern is unfolding at a time when state courts are increasingly responsible for protecting the rights of citizens, from voting to reproductive rights.”

Holder urges judges to stand strong against legislative attempts to influence their rulings: “If courts are to be neutral arbiters of the law in our democracy, they must be prepared to fight for their role.” But ordinary citizens have an important part to play too. “History has demonstrated that when we act collectively, we can always right the course of justice and democracy,” he writes. “Now is the time for all of us to do our part.” I hope you have the chance to read the whole essay.

McCormack’s essay looks at how state supreme courts can spur cultural change and innovation by addressing the hurdles that many people face in accessing justice. State supreme courts are often charged by state constitutions with administering justice throughout their state, she notes, and they “did so in groundbreaking ways during the Covid-19 pandemic, as state courts across the country developed new eviction diversion programs, many of which showed great promise in helping tenants avoid homelessness.” She urges court leaders to learn from the successes of these programs, particularly the focus on “upstream” solutions to address the systemic challenges that trial judges experience “downstream” day to day.

Importantly, “these upstream responses to justice problems were not historically considered part of the judiciary’s job. State supreme courts must lead the culture change,” she argues. Among other things, McCormack highlights “the effectiveness of collaborative partnerships between the judiciary, executive agencies, community organizations, and nonprofits in delivering innovative solutions.” You can read the whole essay here.

I also hope you’ll take some time to explore the rest of State Court Report. You can read commentary across more than a dozen issue areas or learn more about a particular state. We also have a brand-new State Case Database, which highlights notable state constitutional decisions and cases to watch in state supreme courts across the country. (Do we have amicus and merits briefs available for these cases? Yes we do.)

We also want to hear from you. Please send along feedback and ideas to StateCourtReport@brennan.law.nyu.edu. And if this newsletter was forwarded to you and you’d like to sign up, please click here. We hope you enjoy the new site!

Introducing the State Court Report Advisory Board

Last spring, we convened an advisory board of law professors, retired judges, and journalists to offer input and guidance as we built State Court Report. We are grateful to Chief Justice Tani Cantil-Sakauye (ret.) of California, Sue Cross, Chief Justice Wallace Jefferson (ret.) of Texas, Dahlia Lithwick, Chief Justice Bridget Mary McCormack (ret.) of Michigan, Judith Resnik, Daniel Rodriguez, Kate Shaw, and Robert Williams for their insights and contributions. READ MORE

The Relationship Between SCOTUS and State Constitutional Law

Robert Williams, a State Court Report advisory board member and emeritus professor at Rutgers Law School, explains how U.S. Supreme Court rulings can expand or contract the space for state constitutional law, detailing varying state court approaches to interpreting their own constitutions. “The Supreme Court has often expressed support, or at least tolerance (as it must), for state courts interpreting their constitutions to be more protective than its interpretations of the federal Constitution,” he observes. READ MORE

Hoosiers Meet John Locke

The Indiana Supreme Court upheld an abortion ban in June, but “its analysis connected the state’s constitution to the 17th-century English philosopher John Locke in a way that could open the door to protecting a broad array of ‘natural rights,’” argues Anthony Sanders of the Institute for Justice. Indiana is one of 31 states with constitutional provisions referencing natural rights. READ MORE

Montana Climate Decision Highlights Value in ‘Modernizing’ State Constitutions

A landmark Montana trial court ruling last month required the state to consider the impact of fossil fuel projects on climate change, applying the state constitutional right to a “clean and healthful environment.” Kevin Frazier, assistant professor of law at St. Thomas University, argues that the case “underscores how regular, transparent, and democratic revision of state constitutions may assist in ensuring that our laws and institutions can help resolve rather than worsen evolving social issues.” Montana has one of the youngest state constitutions, ratified in 1972. READ MORE

Abortion Fights Often Take Direct Path to State Supreme Courts

Zachary Clopton, a professor of law at Northwestern Pritzker School of Law, details how state supreme courts have frequently addressed challenges to both abortion laws and abortion-related ballot measures through their original jurisdiction rather than waiting for an appeal. One takeaway of these original actions, he argues, “is that ‘returning abortion to the states’ is not the same as ‘returning abortion to the people.’” READ MORE

What Else We’re Reading

• The second edition of The Law of American State Constitutions is now available.

• Bolts recently released a state-by-state guide to state supreme court judicial selection, discipline, jurisdiction, and other powers.

You May Have Missed

On September 8, the Florida Supreme Court heard oral arguments in a challenge to the state’s 15-week abortion ban. Stetson University Law Professor Ciara Torres-Spelliscy previewed the case, in which the court is poised to reconsider prior precedents protecting abortion rights.

In August, the South Carolina Supreme Court upheld the state’s abortion ban, months after it struck down a similar law. The Brennan Center’s Gabriella Sanchez gives a rundown of the ruling, which came after the departure of the court’s only female justice.

Notable Cases

Loe v. State, Texas Supreme Court
Declined to reinstate a trial court’s temporary injunction, which was automatically superseded on appeal, with respect to a new law restricting gender-affirming care for minors. The state supreme court did not explain its reasoning, and the appeal is still pending. // AP

Burroughs v. State, Delaware Supreme Court
Held that the state constitutional right to bail does not prohibit imposing “unaffordable financial conditions to a dangerous defendant’s pretrial release on bail” and that to do so there must be clear and convincing evidence of flight risk or substantial risk to the community not alleviated by nonmonetary conditions of release. // ABA Journal

Black Voters Matter Capacity Building Institute v. Byrd, Florida 2nd Judicial Circuit
Trial court ruled that the legislature violated the Florida Constitution by enacting a congressional redistricting plan that diminishes the ability of Black voters in North Florida to elect representatives of their choice and that this state constitutional provision does not violate the 14th Amendment to the U.S. Constitution. // WTXL Tallahassee

VIRTUAL EVENT

Abortion Rights and the Future of State Constitutions
Tuesday, September 19, 6–7 p.m. ET
Join us for a live virtual panel exploring the aftermath of Dobbs and its implications for state courts and constitutions. Panelists include Cheri Beasley, former chief justice of the North Carolina Supreme Court; David Cohen, a reproductive rights scholar at Drexel University; and Alicia Bannon, director of the Brennan Center Judiciary Program and editor in chief of State Court Report. Emily Bazelon of the New York Times Magazine and Yale Law School will guide a conversation on the role of state courts in adjudicating reproductive rights cases, as well as the future of state constitutionalism. RSVP today.

Produced in partnership with the Birnbaum Women's Leadership Center

Illustrator cred: Douglas Smith