In a recent case addressing sovereign immunity for Native American tribes, Washington Supreme Court Justice Sal Mungia issued an unusual concurrence: He agreed with the state high court’s ruling that, under U.S. Supreme Court precedent, the Stillaguamish Tribe is immune from a lawsuit over land ownership. “But I dissent,” he wrote in Flying T Ranch v. Stillaguamish Tribe of Indians, “from the racism embedded in the federal case law that applies to this dispute.”

Mungia’s concurrence lays out the racist stereotypes rooted in the landmark U.S. Supreme Court rulings cited by the Washington high court. In these 19th-century cases, justices described Native Americans as “low in the grade of organized society” and with a “savage nature.”

Mungia’s concurrence was striking not only for pointing out the prejudices baked into long-standing precedents but also for how it engaged with his role as a state court judge in our federal system. Mungia acknowledged that the Washington Supreme Court is bound to follow U.S. Supreme Court precedents. However, “we are not bound to stay silent as to the underlying racism and prejudices that are woven into the very fabric of those opinions,” he argued. He called on his colleagues to “clearly, loudly, and unequivocally state that was ‘wrong.’”

While the cases Mungia condemns are more than a century old, state judges have also sharply critiqued some contemporary U.S. Supreme Court decisions as resting on their own illegitimate bases. Last month, for example, Justice Todd Eddins of the Hawaii Supreme Court pointed to recent U.S. Supreme Court rulings, including those from its shadow docket, as reflecting a “throw-judges-under-the-bus disdain for district courts, the fact-finders of the federal judiciary.” Looking at the high court’s Establishment Clause jurisprudence, Eddins argued in his Hilo Bay Marina v. Hawaii concurrence that the justices had “repackaged and whitewashed facts to achieve a desired outcome” and imposed policy preferences by “unprincipled fiat.”

When it comes to critiquing the U.S. Supreme Court, state supreme court justices enjoy a unique institutional posture: Like all judges, they can speak to the reality of having to apply problematic precedents, but they also sit outside the federal judicial hierarchy that often leads lower court judges to bite their tongues. Notably, while federal judges have increasingly spoken up to criticize the Court’s use of the shadow docket in litigation involving the Trump administration — which is highly unusual in itself — they’ve largely done so anonymously.

State supreme court justices are also in a special position because they sit atop state judiciaries as the ultimate word in interpreting state laws. This means that within their own sphere, they can model an alternative to the Court in how they interpret, apply, and grapple with their states’ constitutions, laws, and precedents. Eddins, for example, observed that when it comes to interpreting his state’s constitution, he treats recent Supreme Court jurisprudence as “white noise.” And as Mungia notes, the Washington Supreme Court has repudiated some of its own prior decisions that “disregarded the rights of Native Americans and their treaty rights.”

Historically, controversial Supreme Court decisions weren’t the end of the conversation about the meaning of the U.S. Constitution and federal laws. Cases like Lochner v. New York, which invalidated labor protections as inconsistent with the right to freedom of contract, were just the beginning of dialogue — and sometimes conflict — between the Supreme Court and Congress, the states, and other institutional actors. Today’s state court opinions may signal a new generation of contestation.

Voters in six states will consider ballot measures on issues including voting, firearm access, and parental rights this November. Also up for public vote, writes the Brennan Center’s Erin Geiger Smith, is a proposed redistricting amendment in California that is part of a national battle over who will control the U.S. House of Representative after the 2026 elections. Read more

State and local governments have primary responsibility for setting rules on how elections are run. Yet the Trump administration has unlawfully sought to assert control over certain aspects of election administration, write the Brennan Center’s Jess Brouard and Derek Tisler, including by issuing an executive order purported to mandate new rules governing voter registration and voting systems. Read more

Missouri voters approved an abortion rights amendment last year, but legal battles over access to reproductive health care have raged on. The saga “reached a pivotal point last week when an appellate court affirmed a decision blocking the enforcement of several laws restricting abortion,” University of California, Davis, School of Law professor Mary Ziegler writes. Read more

There are forceful legal arguments that support individuals using state civil rights statutes to sue federal employees who violate the U.S. Constitution, writes Harrison Stark, a senior counsel at the State Democracy Research Initiative at the University of Wisconsin Law School. Read more

Many states require a litigant challenging a statute as violating the U.S. Constitution to prove that the statute is unconstitutional “beyond a reasonable doubt.” That standard, writes Katherine Steefel of the University of Denver’s Sturm College of Law, “presents serious problems of doctrine and policy.” Read more

As federal protections for transgender and reproductive rights recede, state courts have been a key forum for major decisions in those areas, including by expanding protections under distinctive state constitutional provisions. Rulings in one area increasingly shape the other, writes the Brennan Center’s Chihiro Isozaki. Read more

North Carolina Supreme Court Justice Anita Earls will deliver the Robert F. Williams Lecture on State Constitutional Law, "State Constitutions and the Limits of Criminal Punishments," at Rutgers Law School on Thursday, October 23. Register to attend live or via Zoom.

White v. Stitt, Oklahoma Supreme Court
Struck down a law creating new business courts in the state’s two most populous counties, finding that because the law establishes the business courts as a division within the counties’ district courts, the appointment process for the judges violates a state constitutional provision requiring district judges to be elected by voters. // Oklahoma Voice

State v. Michael Sharpe, Connecticut Supreme Court
Held that neither the police’s collection of DNA from a belt the defendant had put in the trash nor the subsequent analysis of that DNA solely for purposes of identifying the defendant violated his privacy rights under the Fourth Amendment or the state search and seizure clause. In a strenuous dissent, two justices said the state search and seizure clause should be interpreted independently to preserve a person’s reasonable expectation of privacy in the identifying information gleaned from extraction and testing of shed DNA. // Hartford Courant

Onondaga v. New York, New York Court of Appeals
Unanimously ruled constitutional a new law that will move many county and town elections to even-numbered years — the same as other state and federal elections. The court rejected local governments’ claims that the state constitution’s home rule clause limits the legislature’s authority to change the timing of these elections and individual voters’ claims that the law burdens voting. The Brennan Center called it “a major victory for New York voters.” // Spectrum News 1

Mitchell v. University of North Carolina Board of Governors, North Carolina Supreme Court
Affirmed that a state university properly followed its handbook procedures when terminating a professor but overruled the intermediate court’s reasoning in this and several other cases that an agency’s interpretation of its own rules (here the university system’s) is entitled to deference. The court held that courts interpreting state administrative regulations must conduct de novo — or their own, from scratch — review. // Carolina Journal

State v. Rogers, North Carolina Supreme Court
Held that North Carolina’s search and seizure clause is in lockstep with the Fourth Amendment in recognizing a “good faith” exception to the exclusionary rule for when police reasonably rely on judicial authorization for a search despite that search later being found unlawful. The court overruled its 1988 ruling that the state clause contains an exclusionary rule that does not recognize this exception, but it assumed without deciding that the general rule excluding evidence from unlawful searches still arises under the state constitution. // Law360

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

HYBRID EVENT   HYBRID EVENT: The Power of State Constitutional Rights Thursday, November 6, 8:15 a.m.–5 p.m. Friday, November 7, 9:15 a.m.–4:30 p.m. Arthur Rubloff Building Northwestern Pritzker School of Law 375 E. Chicago Ave. Chicago, Illinois RSVP for this free in-person and virtual event State courts and constitutions are increasingly in the spotlight as significant sources of rights. In areas ranging from abortion to education to property rights, many state constitutions offer protections that are distinct from and often more expansive than those found in the U.S. Constitution. Join the Brennan Center, State Court Report, and the Northwestern University Law Review for a two-day symposium at Northwestern Pritzker School of Law exploring the future of state constitutional rights, including the substantive rights protected by state constitutions, state constitutional amendments, and emerging issues in areas such as LGBTQ+ rights and voting rights. RSVP today Produced in partnership with the Brennan Center for Justice and the Northwestern University Law Review Illinois CLE credit for this event is pending. If approved, credit will be offered to in-person participants.