Plus: Climate change goes to court, Texas upholds ban on transgender care for minors


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Federal law constrains state power, but it also leaves openings (sometimes chasms) for state constitutions and state laws to fill. One of the most consequential U.S. Supreme Court terms in recent memory just ended, and it changed that landscape in significant ways. I thought I’d use this week’s essay to talk about some of the implications for state courts and constitutions.

Trump v. United States

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, the presidential immunity case, was the headline of the term. It shocked many observers, myself included, with its broad grant of presidential immunity for “official acts,” coupled with ambiguous exceptions that lower courts will be left to puzzle over. While the case before the Court was a federal criminal prosecution, the state court sentencing for Donald Trump’s recent conviction under New York law has since been postponed to give the trial judge time to consider the implications of the ruling.

Importantly, the New York trial related to Trump’s campaign and business conduct, not “official acts” as defined by the Supreme Court. The New York court’s analysis will likely turn on whether any of the evidence presented at the trial did encompass official acts (and if so, whether doctrines like waiver or harmless error may apply). In the end, the immunity ruling will create a federal appellate issue that could ultimately lead to Supreme Court review of Trump’s New York conviction, but not until the case passes through New York’s own appellate process.

In City of Grants Pass v. Johnson

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, the Supreme Court upheld a municipality’s anti-camping law that made it illegal for unhoused residents to sleep outdoors, rejecting a challenge under the Eighth Amendment. Here the Court created a rights vacuum that state courts could potentially fill under their state constitutions. A New York City consent decree, for example, has long recognized a right to shelter

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rooted in a state constitutional provision providing that the state shall provide “aid, care and support of the needy” (although a recent settlement scaled back its scope). And the Hawaii Supreme Court recently held

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that state due process requires a hearing before the state can seize and destroy property during government sweeps of encampments. With respect to the Eighth Amendment, in other contexts

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we’ve seen some courts interpret analogous state constitutional provisions more expansively. Many states’ constitutions also have broad natural rights

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language recognizing “inherent” or “inalienable” rights to life, liberty, and the pursuit of happiness. Might there be a fundamental right to sleep?

The Supreme Court also punted on an abortion rights case coming out of Idaho, Moyle v. United States

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, which raised the question of whether federal law requires Medicare-funded hospitals to provide emergency abortions. The Court dismissed the appeal and didn’t weigh in on the merits but did reinstate a lower court injunction requiring Idaho doctors to provide emergency abortions while litigation continues.

As a practical matter, the (non)ruling creates a rights patchwork, at least for now, because the U.S. Court of Appeals for the Fifth Circuit held in a different case coming out of Texas that the federal statute at issue does not apply to emergency abortions. As the Brennan Center’s Gabriella Sanchez recently explained

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, all this legal uncertainty means that litigation under state constitutions aimed at clarifying or broadening life or health exceptions to abortion bans will almost certainly continue, with mixed

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results

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.

Another decision with major implications for state courts is United States v. Rahimi

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, in which the Supreme Court upheld a federal law banning gun possession by people subject to domestic violence restraining orders. Rahimi rolled back some of the most extreme implications of the Court’s 2022 Second Amendment decision in New York State Rifle & Pistol Association v. Bruen

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. As law professor Eric Ruben explained

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in a recent piece, this leaves more space for state courts to issue disarmament orders — but also a lot of open questions about what kind of orders pass constitutional muster and what kind of procedural steps are required. A point that Ruben makes that I had never realized: most Second Amendment litigation actually happens in state court.

Finally, some rulings are worth watching even if they don’t implicate state courts directly. In Loper Bright Enterprises v. Raimondo

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, the Supreme Court overturned the 1984 case Chevron v. Natural Resources Defense Council

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, which required courts to defer to agencies’ reasonable interpretation of ambiguous federal statutes. Deference has also been the norm in the states: 35 states

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provide for substantial or appreciable deference to state agency action. Loper Bright is based on an interpretation of federal legislation, the Administrative Procedure Act — meaning that there’s no legal reason why it should implicate state agencies at all. One big question will be whether this federal law decision nevertheless exerts a gravitational pull on how state courts interact with state agencies.





Challenging Confederate Monuments

Courts in North Carolina, South Carolina, and Virginia have recently considered state constitutional challenges to public monuments glorifying the Confederacy. These cases rely on a wide array of constitutional provisions, from equal protection clauses to prohibitions on the misuse of taxpayer funds, explains Campbell University law professor Marcus Gadson. Gadson argues that there is also “a strong argument that in the years after the Civil War, celebrating the Confederacy violated state constitutions that had been rewritten as a condition of readmission to the Union and contained clear commitments to both the Union and to racial equality” — yet courts are silent on this history. Read more

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Montana Supreme Court Hears Landmark Climate Change Case

The state of Montana is asking the state supreme court to overturn a trial court’s decision in favor of 16 youth plaintiffs who claim their constitutional right to a clean and healthful environment is violated by a law banning state agencies from weighing the impact of climate change in their environmental reviews. “The legal arguments are important, but the social and emotional ramifications are just as significant,” an attorney in the case told journalist David Brown, who writes about the Montana case and litigation it has inspired in other states. Read more

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Courts Considering Measures that Safeguard Ballot Access

Challenges to measures that make voting easier, like early voting, absentee voting, mail voting, ballot boxes, and same-day registration, are moving through state courts across the country. The Wisconsin Supreme Court recently reinstated the use of absentee ballot drop boxes, while Delaware’s high court allowed in-person early voting. "The lawsuits are two of many across the country where conservative groups and politicians seek to limit or overturn efforts to make voting more convenient," the Brennan Center's Erin Geiger Smith writes. Read more

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Oklahoma Supreme Court Blocks Public Religious Charter School

The Oklahoma Supreme Court recently held that publicly funded religious charter schools violated the state constitution, the U.S. Constitution, and state charter school laws. But Fordham law professor Aaron Saiger argues that the court failed to do a fact-specific inquiry into whether the charter school was actually more like a private school than a public school, as required under recent U.S. Supreme Court precedent. Read more

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Six-Week Abortion Ban Upheld in Iowa

The Iowa Supreme Court said the state’s “fetal heartbeat law,” which bans abortions after approximately six weeks of pregnancy, is constitutional. In several recent major decisions on reproductive care, the court “has swung dramatically on the issue,” writes the Brennan Center’s Kathrina Szymborski Wolfkot. Read more

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Texas Supreme Court Refuses to Block Ban on Transgender Care for Minors

The Texas Supreme Court declined to reinstate a temporary injunction stopping enforcement of the state’s ban on certain gender-affirming care for minors, including puberty blockers, saying the ban did not violate parents’ rights to make decisions for their children and does not constitute sex discrimination. A dissent said the ban could prevent parents from accessing “lifesaving” care for their children, writes the Brennan Center’s Erin Geiger Smith. Read more

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An Interview with Justice Clint Bolick of Arizona

Arizona Supreme Court Justice Clint Bolick spoke with the Brennan Center’s Gabriella Sanchez about what makes the state constitution unique and the challenges facing state courts. The interview is part of a State Court Report series of conversations with state supreme court judges. Read more

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What Else We’re Reading

Kyle Barry, director of the State Law Research Initiative and a State Court Report contributor, and law professor Maria Hawilo write in Slate

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about how state courts have protected — and can further protect — citizens from cruel and unusual punishment, despite recent rulings by the U.S. Supreme Court enforcing harsh punishments.





You Might Have Missed

Abortion rights groups filed a lawsuit

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in Michigan state court challenging the state’s ban on Medicaid coverage for abortion care. State Court Report previously covered rulings

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in Pennsylvania and Nevada addressing their states’ Medicaid abortion bans.

Michigan justices will hear

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whether a state ban on life sentences for 18-year-olds should be extended to 19- and 20-year-olds. Read State Court Report’s series

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on a recent Massachusetts ruling banning such sentences under the state constitution.

The Utah Supreme Court sent

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a partisan gerrymandering case back to the lower court to consider whether the legislature's overturning of redistricting reforms infringed citizens' lawmaking power. State Court Report has a summary

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of every significant partisan gerrymandering case in the country, which is regularly updated to account for new developments.

Utah’s high court also blocked

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from the ballot an initiative seeking to impose an age limit of 81 on candidates for federal office. Read State Court Report’s overview

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of how state courts oversee ballot initiatives.





Notable Cases

Evers v. Marklein

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, Wisconsin Supreme Court

Ruled 6–1 that vetoes by the Republican-controlled legislature’s budget committee over state conservation programs — vetoes that were challenged by Gov. Tony Evers — violated the separation of powers. // National Public Radio

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Sobel v. Cameron

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, Jefferson Circuit Court, Kentucky

Granted summary judgment for defendants in a challenge to the state’s near-total abortion ban brought by three Jewish women who allege that the limited exceptions for pregnancy complications and lethal fetal abnormalities and uncertainty about the handling of unused embryos created in the IVF process have a chilling effect that interferes both with their religious mandate to procreate and state religious protections. The court found the plaintiffs, who are not currently pregnant or undergoing IVF, did not have standing. // Houston Public Media

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Planned Parenthood v. Urmanski; Kaul v. Urmanski

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, Wisconsin Supreme Court

Agreed to hear challenges to a 175-year-old law that conservatives claim bans abortion. A lower court said that the law did not outlaw abortions. The high court will consider if it does and, if so, if it is still enforceable in an appeal brought by a Republican Wisconsin county attorney. If the law bans abortions, the court will also consider Planned Parenthood's claim that the Wisconsin Constitution provides a right to an abortion. // Courthouse News

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Hodes & Nauser v. Kobach, Hodes & Nauser v. Stanek

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, Kansas Supreme Court

Held that a near-total ban on a common method of second-trimester abortion, called a dilation and evacuation, violated the state constitution’s protections of personal autonomy. In another decision in favor of the same plaintiff medical providers, the court also struck down a law subjecting abortion providers to stricter licensing requirements than other physicians. // CBS News

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

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.









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