Plus: Colorado Supreme Court upholds controversial Google search warrant
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One of state courts’ most distinctive attributes is the use of judicial elections. While all federal judges are appointed to the bench (as are the judges in nearly every other country), 38 states rely at least in part on elections to choose justices for their highest courts. The contest for a seat on Wisconsin’s supreme court earlier this year drew national attention — and shattered spending records — with the election of Justice Janet Protasiewicz ending a 15-year conservative majority on the high court. In a few weeks, Pennsylvania will hold its own state supreme court election, as Republican Carolyn Carluccio, a state trial court judge, faces off against Democrat Daniel McCaffery, an intermediate appellate judge.
Pennsylvania’s election is unlikely to be quite the barn burner that we saw in Wisconsin, but it’s already attracted millions of dollars. And, as Adam Sopko of the State Democracy Research Initiative explains in a new piece
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for State Court Report, its outcome is likely to have major implications for state law.
Pennsylvania is one of eight states that use partisan elections — that is, elections in which a candidate’s party affiliation appears on the ballot — to choose its judges. The court currently has one vacancy, and Democrats hold a 4–2 majority, so this November’s election won’t change the partisan balance on the court. (It could, however, matter quite a bit in 2025, when three Democratic justices are expected to stand for retention election.) But as Sopko notes, Pennsylvania is also a state where judicial ideology hasn’t always tracked with party labels.
The six justices currently sitting on the court have been evenly divided on a number of high-stakes issues, including recent split decisions on vote by mail, police stops, and jury trial rights. Sopko also highlights disagreements among the justices about the test to apply in redistricting challenges and what the constitutional limits should be to logrolling by legislatures.
What would Carluccio or McCaffery do on the bench? Neither candidate has a judicial record that establishes a clear philosophy, but Sopko digs through their cases and public statements to piece together how they might approach their job as a state supreme court justice.
Carluccio has compared her approach to “Justice Scalia’s originalism” and emphasized that she will apply the law “as written.” Sopko argues this could lead her to “narrow protections in cases ranging from voting rights to abortion.” McCaffery has said that in a close case, he would lean toward “including votes, as opposed to disqualifying votes for technicalities, or perceived technicalities.” He compares his approach to constitutional interpretation to that of Chief Justice John Roberts. The comparison, Sopko argues, may “suggest a willingness to occasionally vote in high-profile cases with justices affiliated with the opposite party” and position McCaffery as a key swing vote.
In the coming years, Pennsylvania’s high court is likely to be on the front lines in election disputes, conflicts over separation of powers, and fights over reproductive rights. With the court so closely divided, as Sopko explains, November’s election “will likely push the court’s jurisprudence in new directions and influence state law for years to come.”
Colorado Supreme Court Upholds Controversial ‘Reverse Keyword’ Warrant
Last week, the Colorado Supreme Court rejected a federal and state constitutional challenge to the use of warrants asking search companies like Google to identify everyone who ran a given search. State Court Report’s new managing editor, Kathrina Szymborski Wolfkot, unpacks the ruling. She notes that this is “just the first time a high court has considered the constitutionality of such warrants — certainly not the last.” Read more
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How State Courts Shape Federal Takings Law
Jerry Dickinson, vice dean at the University of Pittsburgh School of Law, examines how state courts’ takings doctrines have at times influenced the U.S. Supreme Court’s federal takings jurisprudence. This concept, which Dickinson calls “takings federalization,” should be “recognized — and arguably embraced — as a legitimate interpretive practice,” he writes. Read more
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Montana’s Untapped Right to Participation
The Montana Constitution includes a unique “right of participation.” Kevin Frazier, a law professor at St. Thomas University, argues that the state constitution’s framers intended to create an “evolving right of participation that permitted meaningful public oversight of agencies,” but that Montana’s current jurisprudence has left the provision “stagnant and insignificant.” He argues, “The right of participation deserves more attention and more litigation.” Read more
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The Benefits of State Shadow Dockets
Justin Long, an associate law professor at Wayne State University, writes about the use of abbreviated procedures in state appellate courts. Focusing on the Michigan Supreme Court, Long argues that “paradoxically,” the use of these procedures “might encourage justices to reach unpopular decisions that are nevertheless sound applications of the law.” Read more
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Pennsylvania Supreme Court Weighs Whether Cities Can Pass Gun Safety Laws
Last month, the Pennsylvania Supreme Court heard arguments in Crawford v. Commonwealth, a state constitutional challenge to a law giving the legislature sole authority over gun regulation. Hillary Shah, a law student at the University of Pennsylvania, analyzes the case, which she notes “appears to be the first time a city has mounted a state constitutional challenge to one of those laws based on substantive due process.” Read more
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What Else We’re Reading
The State Democracy Research Initiative has a new tool
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that allows users to perform full-text searches across all 50 state constitutions.
You May Have Missed
With recent federal court rulings limiting or eliminating rights under the U.S. Constitution, state courts have gained prominence as critical arenas for protecting rights. Check out our new video
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on the ins and outs of state court systems.
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Notable Cases
Commonwealth v. Sadler Brothers Oil Company
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, Virginia Supreme Court
Lifted a temporary ban on “skill games” in Virginia, ruling that the plaintiffs’ state constitutional free speech claim was unlikely to prevail, as the ban primarily governs the conduct of gambling rather than regulating game content. // Virginia Mercury
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Colorado State Board of Education v. Adams County School District 14
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, Colorado Supreme Court
Ruled that state agencies, political subdivisions, and their officials don’t need to comply with a specialized political subdivision test to establish standing to file a lawsuit. // Colorado Politics
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Board of Trustees of the North Dakota Public Employees’ Retirement System v. North Dakota Legislative Assembly
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, North Dakota Supreme Court
In a lawsuit challenging changes to the composition of the North Dakota Public Employee Retirement Board, the state high court voided the entire law, which also contained major budget appropriations, as violating the North Dakota Constitution’s single-subject rule. // Associated Press
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