The State Courts
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That bald fact means that liberals, from the grassroots to high office, must refocus their attention on state courts where they actually stand a chance. Since the founding of the Federalist Society, the right has effectively outmaneuvered the left on judicial appointments. Progressives must do with state courts what the right has already done with conservative judges: elevate liberal jurists who have principles, guts, and vision.
Advocating for this approach makes us uncomfortable. Of course, judges are not apolitical, but we have always aspired to a world in which law could not be reduced entirely to politics. Now we are arguing for more politics in law. But we see no alternative to a Supreme Court that has gone rogue. Today’s hyperactivist conservative majority has few fixed principles: Precedent matters only when it is convenient, originalism dominates unless it produces ideologically unacceptable results, and breathtaking ethical violations are ignored. The law is already being used to achieve blatantly political ends, at such cost to so many vulnerable people, that refusing to fight back would be to surrender too much. State courts are one of the last lines of defense to protect us from the loss of our most fundamental rights.
As Brennan observed, when state courts ground their decisions in state law, in most cases they have the last word on the topic. Generally, federal courts cannot overturn those rulings. This raw power can have major implications for the breadth, scope, and even the mere existence of certain fundamental rights — including to have a legal abortion, to have one’s vote count, to unionize, to seek gender-affirming care, and to escape execution.
Take Washington State, where in the past four years the state supreme courthas struck down the death penalty, prohibited all life-without-parole sentences for youths under 18 and all mandatorylife-without-parole sentences for anyone under 21, and invalidated the state’s statutes criminalizing drug possession — a ruling that effectively legalized drug possession and forced the state to vacate old convictions. In each case, the nine-member court went further than federal law required, invoking the state constitution as a source of broader legal protections.
Not coincidentally, the Washington court includes four former public defenders and several justices of color, an exception for state courts. According to a new report by the State Law Research Initiative, a nonprofit that supports scholarship on state constitutional rights, more than 40 percent of judges on state high courts are former prosecutors, while less than 11 percent have experience representing indigent clients. Only 7 percent are former civil-rights litigators while at least 38 percent percent came from corporate law firms — nearly as many as former prosecutors. Across the nation, there are no people of color on the highest courts in 20 states and male judges far outnumber female judges.
A diverse state-court bench matters greatly to criminal law, which we both practice and teach. On the first day of class, we tell our students that if they care about mass incarceration, they should forget about the federal court system and focus on the states. It’s an overstatement — but only a slight one — meant to grab their attention. After all, of the nearly 2 million people incarcerated in the U.S., almost 1.6 million people are in county jails and state prisons, compared with 209,000 in federal prisons.
The stakes are life-and-death. Consider Florida, which leads the nation in death-row exonerations with a total of 30, more than 10 percent of the state’s current condemned population. Since Governor Ron DeSantis entirely remade the state supreme court by appointing five of its seven justices, its judges have overturned a series of precedents in capital cases. They denied retroactive relief to those who may be too intellectually disabled to be executed under current law and abolished the need to review capital sentences to make sure they are not disproportionate or biased. DeSantis signed legislation in late April allowing juries to impose the death penalty even if they are split 8-4. It is nearly certain that the Florida supreme court will uphold the legislation even though it just issued stays in two death penalty cases to consider its constitutionality.
I don’t have a lot to add here, except to say I think it makes sense. I am of course not the court analyst at this site and many commenters bring a lot of expertise to this issue as well. But I figured this was worth a conversation, at the very least.