Republican state legislators mull a response to the high court’s new progressive majority.

Welcome to the State Court Report newsletter.

The biggest state court news over the past two weeks was not a case but an election: Janet Protasiewicz won a seat on the Wisconsin Supreme Court, ending a 15-year conservative majority.

I won’t repeat the extensive coverage

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of what this change is likely to mean for the future of abortion rights and gerrymandering in Wisconsin. (And as Dustin Brown at the University of Wisconsin’s State Democracy Research Initiative reminds us

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, you shouldn’t sleep on important cases about the balance of power between the governor and state legislature.)

What’s received less attention is how Wisconsin’s conservative state legislature might respond to Justice Protasiewicz’s win and the Wisconsin Supreme Court’s new liberal majority. When courts in Pennsylvania

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and Ohio

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struck down electoral maps as partisan gerrymanders in recent years, for example, some lawmakers threatened to impeach the sitting justices. In Wisconsin, impeachment

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rumblings have already started.

Historically, legislators have abided by a strong norm

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against impeaching judges for unpopular rulings — dating all the way back to a failed attempt to remove U.S. Supreme Court Justice Samuel Chase

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in 1804. But how strongly these judicial independence values hold will be an important test as state courts become increasingly high profile.

Another thing to watch will be bills

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that target the court’s power or independence by, for example, stripping its jurisdiction or remedial powers — a national trend, though likely moderated in Wisconsin by the threat of the Democratic governor’s veto.

All of this is to say that when it comes to state courts, judicial politics doesn’t end on Election Day. Sometimes the targeting of courts by the executive and legislative branches is dramatic — in 2019, Alaska’s governor used a line-item veto to strike $335,000 from the judiciary’s budget in retaliation for a state supreme court decision concerning state funding of certain abortion services. More often, changes can appear technocratic and fly under the radar — with major consequences for a court’s power and relationship to the political branches.

In a new piece

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for State Court Report, Northwestern Law Professor Zachary Clopton details one such little-appreciated mechanism: altering the scope of state supreme courts’ original jurisdiction. Original jurisdiction means that a case can skip over the lower courts and land directly in the supreme court. It can have major practical consequences, impacting how quickly a case can move, how the facts get developed, and which judges get to weigh in along the way. As Clopton explains, many state supreme courts have broad original jurisdiction, which has been used in recent years in cases involving abortion rights, elections, the death penalty, LGBTQ+ rights, guns, and more.

Clopton finds that state legislatures regularly address state supreme courts’ original jurisdiction, creating “opportunities for legislatures to alter the way disputes are litigated and decided, including in ways that might remind readers of better-known maneuvers such as court packing and jurisdiction stripping.” His research is a fascinating look into how the path a case takes can affect substantive outcomes for litigants, and how often these jurisdictional decisions reflect political choices by state legislatures.

And here are more highlights from the past two weeks:

Hawaii Supreme Court Takes on Climate Change

The Hawaii Supreme Court relied on a state constitutional “right to a clean and healthful environment” in upholding a state agency decision denying regulatory approval for a biomass power plant. A concurrence would have also grounded the ruling in due process and the public trust doctrine. Professor Martha Davis of Northeastern Law School writes that the case is “a striking example of how state constitutions can enable courts to engage seriously with climate change.” Read more

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Justices Hear Arguments on Birth Certificate Changes for Transgender Ohioans

Last week, the Ohio Supreme Court heard a challenge to a state probate court’s denial of a transgender woman’s request to change the sex marker on her birth certificate. The decision was upheld by the court of appeals. At the argument, several justices raised questions about their jurisdiction to decide the case. Rex Bossert recaps the oral arguments and case history. Read more

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Washington Supreme Court Limits Searches of Transit Passengers

The Washington Supreme Court recently limited the police’s ability to question and detain public transit passengers about fare evasion. Kyle Barry analyzes the court’s ruling, which was notable in considering racial disparities in the criminal justice system as part of its state constitutional analysis. “This ruling is not the first time that the Washington Supreme Court has explicitly grappled with racial bias in the justice system,” he writes. Read more

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Illinois Supreme Court Hears Bail Reform Challenge

In March, the Illinois Supreme Court heard arguments over the constitutionality of the Safe-T Act, legislation that would abolish cash bail and implement additional changes to the state’s pretrial release system. Ram Subramanian, Ames Grawert, and Maris Mapolski outline the points of the oral argument. “The outcome in Illinois will help make clear how bail reform legislation can be crafted to, if necessary, withstand related challenges,” they write. Read more

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What Else We’re Reading

Robert Williams and Lawrence Friedman have a new edition

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of The Law of American State Constitutions coming out soon.

Notable Cases

Quinn v. State of Washington Department of Revenue

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, Washington Supreme Court

Held that Washington’s capital gains tax was an excise tax that did not violate the state constitution’s “uniformity and levy” requirements for property taxes, its privileges and immunities clause, or the federal Constitution’s dormant commerce clause. Read more in the Seattle Times

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Commonwealth v. Privette,

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Massachusetts Supreme Judicial Court

Held that Article XIV of the Massachusetts Constitution, which protects against unreasonable searches and seizures, limits the “collective knowledge doctrine,” where information known to other investigating officers can be imputed to an officer initiating a stop. Read more in Massachusetts Lawyers Weekly

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Parker v. State of Arkansas

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, Arkansas Supreme Court

Reversed a murder conviction based on the violation of the defendant’s right to a speedy trial under state and federal law. Read more in the Sun

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Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]


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