August 18, 2023
Recent decisions by the Supreme Court have devolved a great deal of power back to the states. From gerrymandering and reproductive freedom to voting rights and more, the states have become battlegrounds for policies with a direct impact on the lives of millions of people. As recent events have shown, state supreme courts, in particular, have emerged as crucial actors in these new battlegrounds, often having the final say on issues that the federal courts have ceded their authority on.
Although the legal arguments made on these issues are nearly identical across states, the composition of these courts drastically changes how those arguments are accepted – or not.
Key Issues
Take abortion, for example, which is typically argued on the grounds of a right to privacy and was infamously given back to the states last year. The Florida Supreme Court has yet to rule on the constitutionality of the state’s 15-week abortion ban, which is the only reason the state’s six-week abortion ban has not yet gone into effect. The Iowa Supreme Court blocked a six-week abortion ban from going into effect, while the Montana Supreme Court actually expanded reproductive freedom. In South Carolina, the state supreme court blocked an earlier abortion ban, but after the composition of the court changed when the only female justice retired, it appears that the court could uphold a nearly identical law.
Another issue frequently taken up by state supreme courts is redistricting. The top court in New York, the New York Court of Appeals, may well prove critical in approving a more favorable map, after a judge last year tossed our decades of congressional map-drawing practices and handed Republicans several seats, and control of the U.S. House, with the most unorthodox map ever seen in that state.
In the last major redistricting cycle, the state supreme courts of Kansas and Tennessee both refused to overturn gerrymandered congressional maps. By contrast, Ohio and North Carolina’s state supreme courts both overturned gerrymandered maps, handing Democrats key victories as they were able to compete on an even playing field.
Perhaps most importantly of all, state supreme courts are important for protecting democracy at its most basic level. In the 2020 election and with the ensuing litigation, state supreme courts rejected the former president 83% of the time, helping to prevent results from being overturned, absentee ballots from being disqualified and preventing conspiracy theories from taking over the administration of elections in such crucial swing states as Wisconsin and Michigan. While many of those decisions were notable for the bipartisan consensus on rejecting the Big Lie, as right-wing jurists continue to grow more extreme, these decisions should not be taken for granted.
The results of a changing composition
Looking at a particular state, one can see the impact of a determined majority. Florida’s Republican Gov. Ron DeSantis has packed the Florida Supreme Court with far-right appointees who are in the process of reversing decades of jurisprudence. In the next few years alone, they look likely to affirm the constitutionality of a patently unconstitutional death penalty bill, to further crack down on abortion rights and to rule on the possibility of a citizen initiative to put recreational marijuana on the ballot.
Just a few years ago, without these extreme appointees, the court was far more receptive to the same arguments it is now rejecting.
Broader recognition
Broader public recognition in the importance of state supreme courts is nationwide, as voters everywhere are taking an ever-greater interest in who they elect to the highest courts in their states.
“State supreme courts and state courts generally are having kind of their shining moment. People are fired up about the courts, you know, with Dobbs and other egregious rulings from the Supreme Court. Folks are really paying more attention to state courts. Wisconsin is the perfect example,” Rachel Bracken, a regional state courts manager with the Alliance for Justice, a group that encourages courts to be composed of those who reflect the people.
In Wisconsin, surging youth turnout helped fuel a win earlier this year for Justice Janet Protasiewicz, whose election flipped the court to a liberal majority, helping the state to restore a functioning democracy. With a Democratic governor and favorable state supreme court majority, the nation’s most extreme partisan gerrymandering (North Carolina is second) and an 1849 abortion ban appear to be headed for the chopping block.
“Our democracy and voting rights, in addition to reproductive rights and abortion access are key motivators for folks. That’s where I feel like a lot of people can really see the most direct impact on their lives,” said Ms. Bracken.
In Michigan, voters helped to preserve a 4-3 Democratic majority on that state’s supreme court, as concerns surrounding reproductive freedom were on center stage. In Ohio, Democrats have increased their ranks from zero to three out of seven justices, which has certainly helped to overturn those gerrymandered maps.
These plans to take back state supreme courts have been years in the making and are just now seeing results, since many state supreme courts have lengthy terms for justices to insulate them from partisan pressures. Further gains are expected to be made, even as the situation may sometimes look bleak in states like North Carolina, where liberals have reached their nadir.
Even in New York, which does not hold elections to its highest court, popular outcry from stakeholders with interests in everything from abortion to environmental protections helped to force the rejection of Democratic Gov. Kathy Hochul’s nomination of Hector LaSalle to be the New York Court of Appeals’ chief justice. She then nominated Rowan D. Wilson, who was confirmed and is expected to lead the court in a more favorable direction.
The American people must continue with their newfound interest in state supreme courts. As rights are under attack and uncooperative legislatures often blatantly violate the will of the people, while U.S. Supreme Court decisions impose archaic abortion bans and gun laws upon the people, they can fight back by ensuring that jurists capable of issuing just decisions that work for the people and recognize the importance of living documents occupy the highest benches of the states where they live.
The courtroom of the Florida Supreme Court. Charles Horowitz for Policy Reform Now
By Charles Horowitz
Policy Reform Now 
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