Plus: Religious freedom challenges to abortion bans, an intro to the California Constitution, and more ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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A new U.S. Supreme Court term starts next week. We’ll see major cases related to gun regulations, gender-affirming health care for young people, and much more. But one category of cases that’s likely to be underrepresented on the Court’s docket is appeals from state courts.

As Georgetown professor Steve Vladeck has observed

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, the number of appeals that the Supreme Court has taken from state courts in recent years has been declining. Looking at the cases the Court agreed to hear as of Tuesday, only 2 out of 28 cases arise from state courts. This is surprising — state courts regularly hear cases implicating federal constitutional rights and federal statutes that could lend themselves to Supreme Court review. For example, state courts hear twice as many

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Second Amendment claims as the federal courts.

At least part of the story about the lack of appeals from state courts appears to be a sharp decline in the Court taking up criminal procedure cases in recent years, for which state courts are a big pipeline. This trend has baffled many criminal procedure scholars and practitioners, who point to a growing list of splits among both state and lower federal courts on important legal questions.

The Supreme Court is also taking up far fewer cases overall, leaving state and lower federal courts as the de facto final word on a host of federal legal questions. According to Vladeck, for the last five years, the Court has issued fewer than 60 signed opinions per year in argued cases — a floor that the Court hasn’t otherwise gone below, with one exception, since 1864. Until about 10 years ago, the number of signed opinions in a term was routinely in the mid-70s, and it was even higher before that. (In 1989, for example, there were 129.)

That said, when the Supreme Court has taken up state court cases, they’ve often been big ones — and often related to elections. Earlier this year in Trump v. Anderson

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, the Court overturned a ruling

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by the Colorado Supreme Court barring Donald Trump from the Republican primary ballot under the 14th Amendment’s insurrection clause, ruling that only Congress has the power to enforce this provision with respect to federal offices. In 2023, the Court rejected a radical claim in Moore v. Harper

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, a case arising out of the North Carolina Supreme Court, that state legislatures were the only state bodies that could regulate federal elections. And of course, the most famous election case of all, Bush v. Gore

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, came out of the Florida Supreme Court.

Much of the election activity this year might end up on the Court’s “shadow docket,” where it hears emergency motions. In just the past two weeks, the Court rejected two election-related motions, both coming from state courts: a request

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by erstwhile presidential candidate Robert F. Kennedy Jr. to be reinstated to New York’s ballot after he was removed for putting forward a false address, and a request

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by the Green Party to be placed on the Nevada ballot after the state high court ruled it ineligible.

One more point: One of the questions I get asked the most when I talk about state courts is what the rules are for when the U.S. Supreme Court can intervene after state courts issue major decisions. There’s an easy version of the answer to this question — state supreme courts are the final word on state law, while the Supreme Court can step in when federal law comes into play — but that obscures a lot of legal nuance. State Court Report advisor Sarah Kessler has a fantastic new explainer

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that lays out the framework.

Litigators take note: From the cases I read, a lot of state courts don’t clearly disentangle state and federal claims, creating a path to Supreme Court review even when that’s not intended. If you’re looking for state courts to develop an independent body of state law, many of them need a clearer roadmap for how to do so.





Religious Freedom Challenges to Abortion Bans

In multiple states, religious plaintiffs have claimed that abortion bans violate state religious freedom guarantees. These lawsuits face procedural hurdles, including that federal precedent implies that plaintiffs must be pregnant or expecting to be pregnant to maintain standing. It remains to be seen whether challengers will find a way around these obstacles, writes Professor Jessie Hill, director of the Reproductive Rights Law Initiative at Case Western Reserve University. Read more

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Election 2024: Efforts to Block Abortion-Related Ballot Measures

Abortion opponents have been using litigation to try to block abortion ballot measures from going to the voters, with mixed results. “The flurry of state court challenges to abortion-rights ballot measures is a potent reminder of how important state courts will remain regardless of what happens in November,” writes Mary Ziegler, professor at the University of California, Davis School of Law. Read more

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Women’s Fight for the Right to Hold Office

“Scholars have long assumed that few, if any, women held public office prior to ratification of the 19th Amendment,” writes Elizabeth D. Katz, law professor at the University of Florida, who discusses her new article unveiling the overlooked history of women’s fight to hold office. Much of that history — including women seeking positions as notaries, school superintendents, and district attorneys — involved developments in state laws and constitutions. Read more

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‘History and Tradition’ in State Courts

The Supreme Court’s use of originalism in legal interpretation “relies on a cramped and misleading notion of the nation’s subjective past,” write New York University School of Law professor Helen Hershkoff and attorney Adam Littlestone-Luria. After all, they point out, states have “varied histories and traditions.” Herskoff and Littlestone-Luria focus on Louisiana’s unique civil law foundation as offering “potent evidence” that “state courts need not march in lockstep with federal interpretive methodology or doctrine.” Read more

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The Importance of Lower Court Judges

“It’s not just the state supreme court justices who matter,” writes Eli Savit, prosecuting attorney of Washtenaw County, Michigan. “State courts at all levels make crucial decisions that affect people’s lives.” Savit points to litigation over abortion access and limitations on extreme sentences for youths as areas in which Michigan courts have expanded rights beyond the federal Constitution. Upholding these rights — and so many others that don’t make headlines — largely falls to lower court judges, Savit writes. Read more

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The California Constitution’s History, Quirks, and Rights Protections

In the first essay in a new State Court Report series, California Constitution Center Executive Director David A. Carrillo and California Court of Appeal Justice Danny Y. Chou write about the idiosyncrasies and components of California’s constitution. Adopted in its original version in 1849, the state’s ever-evolving charter protects direct democracy, limits taxation, promotes individual liberty, and has “placed California at the forefront of the movement to give state constitutions greater independence and effect,” they write. Read more

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Judges Must Prepare for Election Emergencies

“Judges are increasingly being called into the election process and asked to make consequential decisions that impact voters’ rights and the security of elections under immense time pressures and scrutiny,” write the Brennan Center’s Derek Tisler and Gowri Ramachandran. Tisler and Ramachandran make several recommendations on what judges need to know to make informed decisions quickly in case election emergencies arise. These include educating themselves on election administration and creating clear rules for consolidation of motions filed during or immediately after Election Day. Read more

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October Oral Argument Preview

State high courts will hear arguments on issues including postmark and signature requirements for vote by mail, the Wisconsin governor’s creative use of a line-item veto, whether Tennessee courts have the power to decide certain redistricting issues, and the propriety of life-without-parole sentences for felony murder convictions. Our monthly roundup of important and interesting state court cases includes links to view the proceedings. Read more

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What Else We’re Watching: Conference on the Supreme Court of California

On Friday, November 8, multiple justices of the California Supreme Court and Courts of Appeal will speak alongside other experts and judges on topics including the current state of the California judiciary, federalism and state constitutions, and judicial philosophies at a conference held at University of California Law, San Francisco. Registration to attend in person or via Zoom is available here

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Upcoming Symposium: State Constitutions and the Limits of Criminal Punishments

On October 24, Rutgers Law School will host a symposium exploring the interplay between state and federal law and how state courts can use their own constitutions to reduce mass incarceration, impose restraints on extreme sentences, and create a more humane legal system. The conference will take place in person in Camden, New Jersey; virtual participation is also available. Find a full agenda and registration information here

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. The Brennan Center and State Court Report are delighted to cosponsor this symposium.





You May Have Missed

The state of Missouri executed

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Marcellus Williams, who was convicted of murder in 1998 but whose longtime claim of innocence received support from the office that originally prosecuted him. The prosecutor filed a motion in January saying that Williams was likely innocent

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, pointing to evidence that Williams was not the source of physical evidence found at the crime scene. In the days leading up to his execution, the state’s governor rejected Williams’s request for clemency and the state supreme court rejected his legal challenge. The U.S. Supreme Court declined to intervene. State Court Report previously covered the prosecutor’s efforts to vacate Williams’s conviction here

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.

There is a bench trial

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this week in Fulton County, Georgia, in a challenge

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brought by the Democratic National Committee to new rules passed by Georgia’s state election board, which both the plaintiffs and election experts say could allow a rogue county official to delay or prevent certification of election results. The new rules allow county officials to conduct a “reasonable” inquiry and to review election documents before certification, both of which depart from long-standing law and practice that the role of certifying officials is nondiscretionary. State Court Report has covered the case here

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Notable Cases

Krasner v. Ward

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, Pennsylvania Supreme Court

Held that articles of impeachment passed by the Pennsylvania state house against District Attorney of Philadelphia County Larry Krasner became null and void when that legislative session expired in November 2022. The state senate is not permitted to conduct a trial on the articles because the state constitution prohibits impeachment proceedings from stretching across two legislative sessions, the court said. The articles of impeachment against Krasner, a Democrat, included failure to prosecute some minor crimes and failure to, in some cases, enforce bail. State Court Report previously wrote

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about the case, as well the recent uptick in challenges to reform-minded prosecutors. // Associated Press

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Sistersong v. Georgia

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, Superior Court of Fulton County

Held unconstitutional the state’s six-week abortion ban, finding that liberty in Georgia includes “the power of a woman to control her own body,” but noted that that power is not unlimited and that the state may intervene when the fetus reaches viability. State Court Report previously wrote about the case here

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. // FOX 5 Atlanta

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League of Women Voters of Utah v. Utah State Legislature

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, Utah Supreme Court

Voided Amendment D, a legislatively referred proposed state constitutional amendment that would have allowed lawmakers to repeal citizen-initiated and approved ballot measures. The amendment would have overturned a prior Utah high court ruling that State Court Report covered here

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and here

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. The legislature failed to follow the proper procedure for placing an amendment on the ballot, the court said. Due to timing, the amendment will still appear on the ballot, but any votes for it will not be counted. // Associated Press

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

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