Legal experts weigh in on the cases everyone should know about ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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We asked leading scholars and practitioners to share what they see as the most significant state constitutional case of 2024. I’m sharing their answers below (and on our website

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). We’ll be back again in January with our regular newsletter. Happy holidays! —Alicia Bannon

Expanding Abortion Rights

Leah Litman, professor at the University of Michigan Law School and cohost of the Strict Scrutiny podcast

In Kaul v. Urmanski

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, the Wisconsin Supreme Court will decide whether Wisconsin’s near-total abortion ban will go into effect. The ban was originally enacted in 1849.

Oral arguments were in October, just about two years and two months after the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization

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, the case that ultimately overruled Roe v. Wade.

The tenor of the two arguments could not have been more different.

In Dobbs, the Supreme Court gave barely any attention (aside from some questions from two Democratic appointees) to the life-or-death consequences of restrictive abortion bans. (Since Dobbs was decided, ProPublica has reported

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five known cases

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in which women have died because abortion restrictions delayed their medical care.) In Kaul, by contrast, Justice Jill Karofsky pointedly told the lawyer arguing for the revived abortion ban that the law would be “signing the death warrant

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” for women, children, and families. In Dobbs, Justice Amy Coney Barrett drew an analogy between the consequences that an abortion ban had on liberty to the consequences that a vaccine requirement had on liberty.

In Kaul, Justice Rebecca Dallet expressed concern about confining the court’s analysis to the 1840s, when the only “people who had rights” were “white men” who “owned property.” In Dobbs, of course, the Supreme Court leaned into the supposed history and tradition of restricting women’s bodily autonomy.

The Wisconsin Supreme Court will release its decision in Kaul next year. So while it’s not a 2024 decision, the oral arguments highlighted an essential element of 2024: the (potential) divergence between the U.S. Supreme Court and state supreme courts.

Whether the Wisconsin Supreme Court continues to take a different tack than the U.S. Supreme Court, however, will be decided by an election next year — the April 2025 race to determine control of Wisconsin’s high court.

Ting Ting Cheng, director of the ERA Project at Columbia Law School’s Center for Gender and Sexuality Law

In Allegheny Reproductive Health v. Pennsylvania Department of Health and Human Services

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, the Pennsylvania Supreme Court declared the state’s ban on Medicaid coverage for abortion a form of sex discrimination that triggers review under the state Equal Rights Amendment (ERA). The court reasoned that the ban was “presumptively unconstitutional

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” because it limited health care for pregnant people while covering the full spectrum of health care for men, and because it perpetuated gender stereotyping — reversing

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decades-old precedent upholding the ban.

Silver State Hope Fund v. Nevada Department of Health and Human Services

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was a similar challenge using the Nevada ERA to strike down Nevada’s Medicaid ban on abortion funding. A trial court held that the ban violated the ERA by discriminating based on sex. The court said that “at a minimum, strict scrutiny applies” to sex discrimination, leaving open

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the possibility of applying higher levels of scrutiny in future sex discrimination cases. The state attorney general did not appeal this decision.

Both cases highlight the potential

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of state ERAs to protect and advance abortion access in a time of dire retraction across the country. The Pennsylvania case represents a sea change by opening the door for the state to use the state ERA to significantly expand abortion access

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and protect reproductive rights in Pennsylvania. The Nevada case is significant because it marks the first use of Nevada’s ERA — enacted in 2022 — to challenge a state policy that discriminates based on sex.

Protecting People in the Criminal Justice System

Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law

My pick for the most notable state constitutional case of 2024 is Alaska’s State v. McKelvey

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. The issue in the case is whether “the police have to get a warrant before taking pictures of your yard with a zoom lens while flying in an airplane.”

In 1989’s Florida v. Riley

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, the U.S. Supreme Court held that aerial surveillance of a house, even of a partially covered greenhouse, from a helicopter did not constitute a search for which a warrant was required under the Fourth Amendment.

But in McKelvey, the Alaska Supreme Court came to the opposite conclusion under the Alaska Constitution. The court declared

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: “Unregulated aerial surveillance of the home with high-powered optics is the kind of police practice that is ‘inconsistent with the aims of a free and open society.’ The Alaska Constitution does not allow it.”

The case is significant because of the frequency with which this issue arises, especially with the development of drone technology. And the case is an important example of a state court rejecting the U.S. Supreme Court’s reasoning and protecting rights under its state constitution.

Kathrina Szymborski Wolfkot, senior counsel at the Brennan Center for Justice and managing editor of State Court Report

The U.S. Supreme Court has held

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that children can be sentenced to life without the possibility of parole, so long as they are “permanently incorrigible.” Multiple state supreme courts have broken course, declaring that their state constitutions provide broader protection for children facing extreme sentences. This year, Massachusetts’s supreme court set a new benchmark in Commonwealth v. Mattis

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, ruling that the state constitution’s prohibition against “cruel or unusual punishments” bars sending anyone under 21 to prison for life without parole in all circumstances. The court’s reasoning was also notable: It announced

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heightened constitutional review of prison terms — a move that other states should follow.

Mattis marked a major development

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in the constitutional limits on punishment and solidified Massachusetts as a leader

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in humane treatment of youth.

Breathing New Life into State Constitutional Text

Anya Bidwell, senior attorney at the Institute for Justice

Washington v. Cline

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is one of the most important cases decided by a state supreme court this year. The North Carolina case is about the fundamental promise upon which our republic is built: Where there is a right, there is a remedy. According to the majority, this promise is satisfied even when the remedy is not “complete.” The dissent disagrees: “A remedy worthy of a constitutional right” can’t be “just any remedy, but one that breathes life into the right itself.”

All agree that Frankie Delano Washington’s constitutional right to a speedy trial was violated because he was kept in prison for five years awaiting trial on charges of violent home invasion. The disagreement stems from whether Washington is entitled to seek damages directly under the state constitution for this violation. The majority held that he is not because he already received an adequate remedy by getting himself released from jail. But in the dissent’s view, “‘sorry we violated your rights, you can go home’ is not a satisfactory remedy of this foundational right, especially when the charges were shaky and ill-examined from the start.”

While the 5–2 decision is a loss for Washington, both the majority and the dissent agree that the North Carolina Constitution can be self-executing. North Carolina is only one of 16 states that allows

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suits under its constitution. Most states follow the federal judiciary in requiring plaintiffs to first point to a statute that authorizes a constitutional claim for damages to be actionable in court.

Julie Murray, codirector of the American Civil Liberties Union’s State Supreme Court Initiative

Advocates advancing state constitutional claims often encounter a significant impediment: prior case law reflexively holding that state constitutional protections are coextensive with federal ones. This precedent “lockstepping” state and federal law leads to the underenforcement of state constitutional provisions, even ones that have no express federal analogue.

The Ohio Supreme Court’s decision in Cincinnati Enquirer v. Bloom

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addresses one such provision that could be useful for advocates in other states. Bloom rejects the application of stare decisis for state decisions that — without “any independent analysis” — equated the state’s guarantee that “all courts . . . be open” with federal First Amendment protections for free speech and the press. In reaching that holding, Bloom emphasizes distinctions in the text, purpose, and history of the First Amendment and the state’s open courts provision. Given that many state constitutions contain these open courts protections, often alongside similarly unique guarantees of a right to a remedy and for the “due course of law,” Bloom could be marshaled in other states where such constitutional protections hold promise but are not frequently litigated.

Defending Direct Democracy

Jessica Bulman-Pozen, Betts Professor of Law and a director of the Center for Constitutional Governance at Columbia Law School

Across the country, direct democracy has provided some electoral bright spots — including when it comes to democracy itself. The ballot initiative process offers an important means of combating partisan gerrymandering and other self-serving government activity. But as state voters have turned to the initiative, state legislatures have tried to undermine their power

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. Of late, legislatures have not only attempted to impose barriers, such as signature-distribution requirements

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. They have also tried a sneakier back-end approach

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: allowing an initiative to come into effect only in order to amend or repeal it

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.

In League of Women Voters of Utah v. Utah State Legislature

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, the Utah Supreme Court protected government-reform initiatives from such legislative interference.

In 2018, Utah voters approved an initiative requiring the legislature to consider plans produced by an independent commission and prohibiting partisan gerrymandering. Shortly after the 2020 census, however, the Utah legislature repealed the initiated statute and adopted a gerrymandered map favoring Republicans.

The Utah Supreme Court recognized in League of Women Voters that popular sovereignty is central to the state constitutional project. Explicating Article I, Section 2, of the state constitution (“All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require”), the court held that the people have a fundamental right to reform their government through the initiative process. Accordingly, legislation impairing government reform enacted through an initiative is subject to strict scrutiny. Although the state legislature has not abandoned its efforts to subvert

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the initiative, the court’s unanimous decision is important in its own right and can offer guidance to other state courts considering how to strike a balance between direct and representative democracy under state constitutions.

Quinn Yeargain, associate professor and the 1855 Professor of the Law of Democracy at the Michigan State University College of Law

In 2018, a group of Michigan voters gathered signatures to place minimum wage increase and sick time measures on the ballot. The proposals first went to the Michigan legislature, which has the power under the state constitution to enact voter-initiated measures rather than place them on the ballot. The legislature did so — and then, after the election, gutted them. In Mothering Justice v. Attorney General

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, the Michigan Supreme Court held that the legislature had no power to engage in a bait-and-switch with its limited powers and put the measures into effect. Efforts by politicians to limit voters’ direct democracy powers

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, or to undermine

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voter-approved measures, have increased in recent years. State courts, including the Michigan Supreme Court, have been an important backstop in protecting the ability of voters to engage in the democratic process.

Marcus Gadson, assistant professor of law at Campbell University

Perhaps the biggest legal development this year — if not as appreciated as it should be — is an intensifying national conversation

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about what popular sovereignty

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means. Twenty-five state constitutions allow for some form of citizen-sponsored initiative or referendum. Americans frequently used these processes in 2024 and often experienced vigorous pushback from legislatures and other government institutions when they did. That’s why I believe that this year’s most important state court case is League of Women Voters v. Utah State Legislature

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There, the Utah Supreme Court rebuffed the legislature’s attempt to override a citizen-sponsored initiative establishing an independent commission to draw legislative districts in an effort to prohibit partisan gerrymandering. In so doing, the court cited the importance of constitutional language

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recognizing the right of citizens to “alter or reform their government.” Cases like these inspire hope that efforts to undermine direct democracy

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— sure to come — can expect judicial resistance going forward.

Daniel Rodriguez, Harold Washington Professor at Northwestern Law School

The issue of legal protections and resources for members of the gig economy continues to be a prominent public policy debate in the states. After many conspicuous legal and political struggles in California, voters there in 2020 adopted Proposition 22

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, making clear that app-based drivers for companies such as Uber and Lyft were independent contractors rather than employees. A challenge was brought against this initiative, claiming that it was in conflict with Article XIV, Section 4, of the California Constitution, which vests the legislature “with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation, by appropriate legislation.” Reading this provision as giving the legislature “unlimited” power to govern workers’ compensation, which would presumably then include the legislature’s power to sweep app-based drivers into the overall workers’ comp scheme in the state, plaintiffs argued that there was a square conflict between the relevant terms of the law enacted by Proposition 22 and the California Constitution.

In Castellanos v. State of California

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, the California Supreme Court upheld the 2020 initiative, viewing the law as consistent with the relevant provisions of the state constitution. At the heart of Justice Goodwin Liu’s opinion

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for the court was the critical principle, adumbrated by an important early state supreme court opinion, that the broad power given to the state legislature in 1918 to configure workers' compensation was not intended to interfere with the California voters’ initiative power. The legislature’s authority over workers’ comp in the constitution was best read as shared with the people, rather than exclusive. The initiative power

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is a reserved power and should be liberally construed.

This decision reflects the court’s pattern set over many years of giving a wide interpretation of the people’s power to make and change laws. Moreover, as a practical matter, it leaves in the hands of the legislature the continuing controversial question

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of whether there should be workers’ compensation protections for these independent contractors.

Defining Separation of Powers

Miriam Seifter, professor and faculty codirector of the State Democracy Research Initiative at University of Wisconsin Law School

This has been an eventful year in state constitutional law. Readers interested in state-level democracy should not miss Mothering Justice v. Attorney General

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and League of Women Voters of Utah v. Utah Legislature

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, significant direct-democracy rulings covered elsewhere in this end-of-year feature. I’ll highlight Evers v. Marklein

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, a Wisconsin separation-of-powers case with important implications

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for the accountability and capacity of state government.

The 6–1 opinion

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by the Wisconsin Supreme Court rejected a legislative committee veto over executive branch spending, emphasizing that a legislative committee cannot usurp the executive branch’s ability to implement duly enacted laws. The under-the-radar law in the case allowed a committee of legislators to block state agency spending of certain already appropriated funds. Wisconsin law contains dozens of similar vetoes, which have collectively supercharged legislative committees as powerful policymakers. Other state courts

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(and the U.S. Supreme Court) have overwhelmingly rejected legislative vetoes, though state legislatures continue to pursue them, sometimes empowering small and unrepresentative committees to thwart states’ ability to respond to problems. (An additional challenge to legislative committee vetoes of agency rulemaking is now pending in the Wisconsin Supreme Court.)

Against that backdrop, Evers v. Marklein stands as a significant good-government ruling. Oversight of the executive branch is vital, but these committee vetoes aren’t a permissible or accountable approach, and they diminish the state capacity that is essential to effective governance. Ultimately, the case reinforces the real-world impact of subtleties of state constitutional structure that we too often overlook.









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