State Supreme Courts Decide More of Your Life Than the Nine in Washington

Ask a hundred Americans to name a Supreme Court justice and a fair number can do it. Ask them to name a justice of their own state's supreme court and you will hear crickets, a cough, and somebody checking a phone. That is a remarkable thing, because the nine in Washington will never decide whether your landlord can keep your deposit, who gets the house in a divorce, what your child's school must be funded to teach, or how long the man who broke into your garage will sit in prison. The justices in your state capital very well might.

The thesis of this post is simple and a little unfashionable. Most of the law that touches an ordinary family is state law, interpreted by state courts, under state constitutions, and the highest of those courts have the last word on it. If you care about limited government, federalism and the rule of law, and every conservative says he does, then the courts closest to home are where those principles get tested first.

Define the terms

Three terms do the work in this argument, so let us fix them.

State law means the constitution, statutes and common law of a single state. It covers contract, property, torts (the law of injuries), family law, wills and estates, most crime, and the machinery of local government and public schools.

A state supreme court is the court of last resort on questions of that state's law. Two states, Texas and Oklahoma, split the top job, with one high court for civil cases and a separate one for criminal cases. In most others a single court does both. Some states name their top court something else entirely; in New York it is the Court of Appeals, which sounds like a middle rung and is in fact the top of the ladder.

Federal law is the Constitution, federal statutes and treaties made under it. Federal courts hear cases that arise under that law, cases between citizens of different states above a dollar threshold, and a short list of others the Constitution names in Article III.

The framing of the founding generation is the right one here. In Federalist 45, Madison wrote that the powers delegated to the federal government were "few and defined," while those that remained with the states were "numerous and indefinite." He went on to say that federal powers would be exercised mainly on external objects such as war, peace, negotiation and foreign commerce, while the powers reserved to the states would extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people. Lives, liberties and properties. That is a fair description of the docket of any state supreme court in America.

The argument in four premises

One. The Constitution gives Washington enumerated powers and leaves the rest to the states and the people. That is the Tenth Amendment, which says that powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved to the states respectively, or to the people.

Two. The ordinary law of a family's life was never among the delegated powers. Congress was not handed the law of contracts, the law of the farm boundary or the law of the marriage license. Those stayed with the states, and they remain with the states to this day, even though the federal government has pushed outward at the edges for a century.

Three. Where a state owns the law, its courts own the last word on what that law means. The United States Supreme Court has no business correcting a state court about the meaning of a state statute or a state constitution. Washington can interpret Washington's law. It cannot interpret Albany's, or Austin's, or Columbus's.

Four. Therefore the people who choose, confirm, elect or retain state judges are shaping the daily law of their own community, and they should treat those choices with the seriousness they give a presidential race. Most do not. Turnout in state judicial elections is a fraction of the turnout for governor, and many voters leave that part of the ballot blank.

Let that premise rest a moment. A voter who spends months arguing about a Supreme Court vacancy in Washington often cannot say how his own state picks its judges. He knows the batting order of the nine but not who rules on his property line, which is a little like memorizing the Super Bowl roster and never learning who runs the neighborhood zoning board. We will get to how the states do it in a companion post, Elected, Appointed or the Missouri Plan, How the States Choose Their Judges. For now, understand what is at stake.

The rule that keeps Washington out: adequate and independent state grounds

Here is the legal mechanism that makes state high courts genuinely supreme in their own sphere. It is called the adequate and independent state ground doctrine, and it is why a state court can protect a right more broadly than the federal Constitution does and then be left alone.

The logic is jurisdictional. The Supreme Court of the United States can review a state court's decision only on questions of federal law. If a state court rests its judgment on a ground of state law that is independent of any federal question and adequate on its own to support the result, then even if the federal question was decided wrongly, reversing it changes nothing. The state court would reach the same judgment under its own law. An opinion reversing the federal part would be, in effect, advisory, and federal courts do not give advisory opinions. That rule goes back to the nineteenth century, to cases such as Murdock v. Memphis in 1875.

The hard part was always knowing which ground the state court actually relied on. In Michigan v. Long (1983), the Court settled that. The facts were ordinary and a little dramatic. Michigan police stopped a car that had swerved into a ditch near a rural road, found the driver apparently under the influence, saw a hunting knife on the floorboard, searched the passenger compartment for weapons and found marijuana. The Michigan Supreme Court threw out the evidence, citing the Fourth Amendment and the Michigan constitution, but its opinion leaned almost entirely on federal cases.

Justice O'Connor wrote the Court's opinion and set a clean rule of presumption. When a state court decision fairly appears to rest primarily on federal law, or to be interwoven with it, and the state court does not make clear that it rests on an adequate and independent state ground, the Supreme Court will assume the state court felt bound by federal law and will review it. If the state court wants to be left alone, it must say so with a plain statement. That "plain statement rule" is the hinge of the modern doctrine.

Notice what this does for federalism. It does not shut state courts out of national disputes. It gives them a way to be immune from review while forcing them to be honest about their sources. A state court may not hide behind federal precedent when it is really making state policy, and it may not blame Washington for a result it chose. Accountability goes with the opinion.

State constitutions that protect more than the federal one

The idea that state constitutions can go beyond the federal floor is old, and it came back into fashion in the 1970s, partly through a famous 1977 Harvard Law Review article by Justice William Brennan. Brennan's motive was liberal: as the Burger Court narrowed federal criminal-procedure rulings, he urged state courts to rely on their own constitutions to keep the earlier protections alive. Conservatives often forget that the same doctrine can serve their side, and in many states it already does.

The Supreme Court itself blessed the practice in PruneYard Shopping Center v. Robins (1980), which held that a state may, under its own constitution, give its citizens broader free-speech rights than the First Amendment gives, even when that means limiting a private owner's property rights. Conservatives will not like every application of that principle, but notice the structure: the federal Constitution sets a minimum, and a state is free to go higher. The reverse is not true. No state court can give a citizen less than the federal floor.

The practical consequence is that your rights are a stack of layers.

• The federal floor. What the United States Constitution guarantees in every state.
• The state constitution. Often longer, more specific and easier to amend, with provisions the federal document lacks, including the right to hunt and fish in several states, explicit property-rights language, balanced-budget requirements, and detailed rules on taxation and education.
• State statutes. Ordinary laws a legislature may change by majority vote.
• The common law. Judge-made doctrine, still the foundation of contract and tort in every state except Louisiana, which follows a civil-law tradition inherited from France and Spain.

An accurate map of your rights has to include all four layers. A conservative who wants to protect property, parental rights, gun ownership or religious liberty will often find the strongest text in the state constitution, and the final word on that text belongs to a state court.

The Massachusetts Constitution of 1780, drafted principally by John Adams, is the oldest written constitution still in force in the United States, and among the oldest anywhere. State constitutions came first, and the federal Bill of Rights borrowed from them, Virginia's Declaration of Rights of 1776, written chiefly by George Mason, being the obvious example.

School funding: the case study

If you want a worked example of state courts deciding something that touches every family, look at how public schools are paid for.

In San Antonio Independent School District v. Rodriguez (1973), the United States Supreme Court held 5 to 4 that the Equal Protection Clause does not make education a fundamental right and that unequal school funding based on local property wealth does not violate it. Federal litigation over school finance effectively ended there.

It moved to the states. Plaintiffs, undeterred, packed up the briefs and went to state courts, and relied on provisions in state constitutions that promise an "adequate," "thorough and efficient" or "uniform" system of public schools. Those clauses were written in the nineteenth century, and their language differs widely. The results are a patchwork. Some state supreme courts, including those in Kentucky in 1989 (Rose v. Council for Better Education) and New Jersey in a long series beginning with Abbott v. Burke in the 1980s, ordered sweeping changes in how schools are financed. Other state courts looked at the same sort of clause and declined to intervene, holding that the question belongs to the legislature.

Here is the lesson, and it should interest conservatives on both sides of the argument. First, the same constitutional text can yield different results depending on whether a court believes it may enforce an open-ended promise. Second, a state judiciary that orders appropriations is making a decision about taxes and spending, which are the legislature's constitutional job. The principled conservative objection is not to state courts per se. It is to courts that treat a vague clause as a license to run the budget. And the principled defence is that when the text really does impose a duty, a court that refuses to read it is not being restrained, merely absent.

Whichever view you take, the point is that it is decided in state court, by judges whose names most voters could not give. That is a civic scandal, or at least a civic opportunity.

Elections and state courts

The same pattern shows up in the machinery of elections. The Constitution's Elections Clause in Article I, Section 4, says the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof. In practice, though, disputes about how a state's own election statutes apply are decided by state judges, and disputes about whether a statute conflicts with the state constitution are decided by state judges too.

The Supreme Court examined how far that goes in Moore v. Harper (2023), which we cover in Moore v. Harper and the Independent State Legislature Theory That Lost. It held that state courts may apply their own constitutions to state election laws, though not to the point of ignoring the ordinary bounds of judicial review. The holding confirms the point of this post. When a map is drawn or a ballot rule is challenged, the first and often final forum is a state supreme court, and the justices of that court decide which election rules apply.

If you care about election policy, such as voter identification, list maintenance, mail-ballot deadlines and chain of custody, then you care about state courts. Those are policy fights, argued on the merits, and they are won in the legislature and, when challenged, in the state judiciary.

The strongest objection, stated fairly

A fair-minded skeptic will say: "You are making too much of this. State courts are often political, many are elected, and some have used 'independent state grounds' as a flag of convenience to get a result the federal Constitution would not allow. Surely conservatives should want more federal supervision, not less."

That objection has weight, so let us credit it. Some state supreme courts have read their constitutions with more imagination than text, and conservatives have been on the losing end of those decisions. There are also states where one-party dominance means the court reflects a single viewpoint, and voters have little practical choice.

But the answer is not to centralize. Four points.

One. The remedy for a bad state court is a state remedy. In most states the constitution can be amended by the voters, and judges can be replaced through the state's own process. A federal override takes the issue away from the people who live under the law. A bad state decision can be fixed in one state without reshaping the other forty-nine.

Two. Federal supervision runs both ways. The same Washington that might correct a liberal state court also decides who sits on the federal bench for a generation. Centralizing power in an institution you control today is a bet that you will control it tomorrow.

Three. Competition among states is a feature. When Texas and California, or Florida and New York, run different rules on taxes, schools and criminal procedure, families and businesses can compare the results and vote with their feet. That discovery process depends on state courts being the final interpreters of state law. A single national rule would end the experiment.

Four. The plain-statement rule already protects against the real abuse. A state court that wants insulation from federal review must say it is relying on state law alone. If it is only borrowing federal reasoning, Washington can step in.

The objection concedes the thesis. It admits that state courts matter enough to fight over. The only question is whether to fight at home or to give up the field.

What a conservative should actually do

Reading your own state's constitution is the single most useful thing a conservative can do with an afternoon. Most state constitutions are available free on the legislature's website, and the Bill of Rights article is usually short. Look for four things.

• How judges are chosen and how long they serve. Elected, appointed or something in between, and for what term.
• Property and takings language. Many state constitutions protect property more explicitly than the federal one, and some tightened the rules after Kelo v. City of New London (2005).
• The education clause. The text that litigators cite when they ask a court to order spending.
• Amendment procedure. How hard it is for the people to override a court.

You might also read how the courts of your state have treated these provisions. Your state's judiciary website posts opinions, and most supreme courts publish a short summary of each term's major decisions. Compare the reasoning to the text.

For a broader grounding in the idea that courts must be bound by words written down in advance, see Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? and Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen. The same method that conservatives urge on federal judges applies to state judges, and it is easier to apply because state constitutions are shorter, more recent and far easier to amend. A state judge who rewrites a clause is reversible by the voters in a way a federal justice is not.

Then there is the matter of the ballot. If your state elects its justices, treat that race like the important one it is. Read the candidates' records, see who has endorsed them and what they have written. We offer a practical guide in How to Research Your State's Judges Before You Vote in a Judicial Election. If your state appoints, find out who the governor named, who confirmed them and why.

What follows for the federal courts

None of this makes the nine unimportant. As Four Votes to Hear a Case, Five to Win It, Inside the Supreme Court's Docket explains, they pick a handful of cases from thousands, so almost everything is decided below, and for state-law questions it is decided at the state level and stays there. The Founders trusted the people of the several states with the daily business of self-government. A conservative who wants that structure to survive has to take the state half of the bargain seriously, and courts are part of that half.

The case in brief

1. Most law that touches a family, including contracts, property, crime, divorce and schools, is state law, and the Tenth Amendment and Federalist 45 say it was meant to be.
2. The adequate and independent state ground doctrine, sharpened by Michigan v. Long in 1983, makes state supreme courts the final word on state law, so long as they say plainly that they rely on it.
3. State constitutions may protect more than the federal floor, as PruneYard (1980) confirmed, so your rights have layers and the strongest text is often close to home.
4. Fights over school funding and election rules are decided in state courts, and the answer to a bad state ruling is a state remedy, amendment or the ballot, not a federal override.
5. Conservatives who want federalism to mean something must read their own constitution and know their own justices.

What you can do: find your state constitution on the legislature's website this week and read its bill of rights and its judiciary article, then look up the names of your state's supreme court justices and how they got there.