Dahlia Lithwick, Erwin Chemerinsky, Eugene Volokh, and more reflect on 2025 ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

[link removed]

We asked leading commentators, scholars, and practitioners to share what they see as the most significant state constitutional case of 2025. I’m sharing their answers below. We’ll be back again in January with our regular newsletter. Happy holidays! —Alicia Bannon

State courts are free to interpret their constitutions differently — and, sometimes, more protectively of civil, economic, and social rights — than their federal counterparts. This year, state courts across the country broke new ground, issuing landmark rulings related to search and seizure, firearms, religious freedom, and more.

As we have in years

[link removed]

past

[link removed]

, we asked some of the country’s leading legal thinkers: What is a state constitutional case you think our readers should know about from this past year, and why? Their answers highlighted the myriad ways that state courts can chart their own jurisprudential courses.

Standing Up to Federal Overreach

Dahlia Lithwick, Senior Editor at Slate and Host of Amicus, Slate’s podcast about the law and the Supreme Court

What I watched closely this year — because of the complex legal and federalism issues they presented — were ongoing debates around states’ rights in the face of federal overreach into areas clearly delineated as state matters. We are seeing state after state asserting their prerogative power to combat federal actions — like troop deployment and immigration enforcement

[link removed]

— even as the federal government creates rationales (often pretextual claims of “emergencies”) for undermining states’ rights.

For example, a Tennessee judge last month temporarily blocked

[link removed]

the deployment of the National Guard in Memphis. Local and state officials claim that the deployment violates the state constitution. And this month, the Wisconsin Supreme Court agreed to hear Voces de la Frontera v. Gerber

[link removed]

, in which plaintiffs asked the court to rule that it is illegal for county jails to hold people whom federal officials suspect have violated immigration law. The state legislature “has clearly laid out the complete extent of state and local law enforcement officers’ arrest authority in great detail,” the plaintiffs say — and that authority doesn’t extend to civil immigration arrests.

Pound for pound, my money is on the states that are fighting to clarify and maintain their power in the face of massive federal intrusion on their authority. If federalism means anything, it means that states are sovereign.

Upholding Citizens’ Right to Reform Government

Hon. Maureen O’Connor, Former Chief Justice of the Ohio Supreme Court

In Utah, recent redistricting developments demonstrate the strength of the rule of law and the impact of citizen-driven reform. A state district court has now imposed a fair congressional map

[link removed]

after finding the legislature’s map — designed to split Salt Lake City into four districts — illegal. This outcome follows years of principled judicial review rooted in the 2018 voter-approved Proposition 4, which created an independent redistricting commission and banned partisan gerrymandering.

In July 2024, the Utah Supreme Court unanimously ruled

[link removed]

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

[link removed]

that lawmakers violated the Utah Constitution by repealing Proposition 4. The court affirmed that Utahns possess a constitutional right to reform government through initiatives and that such reforms cannot be nullified without compelling justification. It also confirmed that courts must enforce Proposition 4’s anti-gerrymandering standards.

On remand, the lower court concluded that the legislature’s map was unlawful and adopted a map proposed by the plaintiffs, including the League of Women Voters of Utah. The court emphasized that it was “not weighing policy by picking a congressional map;” it was “merely applying Utah law.”

Protecting the Right to Earn a Livelihood

Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law Emeritus at UCLA School of Law

A 2020 gubernatorial order shuttered some North Carolina bars for more than 400 days in response to the Covid-19 pandemic, even when many similar businesses could reopen. In North Carolina Bar and Tavern Association v. Stein

[link removed]

, the state supreme court held that this could violate the state constitution’s Fruits of Labor Clause: “We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”

This provision, the court had long held, secures a fundamental “right to conduct a lawful business or to earn a livelihood.” The court therefore remanded the case for discovery on the scientific evidence supporting the long-term closures, and for applying the Fruits of Labor Clause test by “balanc[ing] ‘the public good likely to result . . . against the burdens resulting to the businesses being regulated.’” The case is an important reminder that state constitutions may provide protection for economic rights beyond the highly deferential “rational basis” test applied to economic regulations under the federal Due Process and Equal Protection Clauses.

A Failed Attempt to Overturn an Election

Marcus Gadson, Associate Professor of Law at the University of North Carolina at Chapel Hill

Judge Jefferson Griffin’s challenge to the 2024 North Carolina Supreme Court election — an effort to discard

[link removed]

thousands of lawfully cast ballots in particular counties after certification — became the most consequential state court case of the year. The North Carolina Court of Appeals and the state supreme court ruled in Griffin’s favor. The gambit only failed

[link removed]

because a federal court ordered North Carolina’s board of elections to certify the incumbent candidate, Allison Riggs, who was ahead in the count, as the victor.

But I worry that this case serves as a blueprint for future litigants to overturn settled results whenever they dislike an outcome. Moreover, North Carolina uses partisan elections to select judges, raising questions over just how impartial we can expect judges to be when deciding whether a member of their party wins a disputed election. The case ultimately underscored the fragility of the rule of law. We may learn how fragile in next year’s elections.

Taking the Roberts Court to Task

Christine Monta, Supreme Court & Appellate Counsel at the MacArthur Justice Center

If you can read only one state court opinion this year, read Hawaii Supreme Court Justice Todd Eddins’s concurrence in Hilo Bay Marina v. State of Hawaii

[link removed]

.

In Hilo Bay, the court held that Hawaii’s Establishment Clause precludes the state from enforcing a deed restriction explicitly favoring religion. Eddins wrote separately to explain why the court was departing from recent U.S. Supreme Court Establishment Clause jurisprudence, despite the state’s urging it to interpret the federal and Hawaii clauses coextensively. He did not mince words, describing the Roberts Court’s approach as a “glitchy new methodology” based on “mission, text trickery, originalism, or imagination” — which state court judges concerned with “sensible judicial decision-making” need not follow.

His concurrence is a tour de force that not only masterfully exposes the “ideology-driven jurisprudence” underlying the conservative judicial movement but also serves as a clarion call to state courts to “autonomously interpret their constitutions” instead of blindly lockstepping with federal interpretations “grounded in unsound methods.”

Slaying Zombie Laws

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

Those who thought that the U.S. Supreme Court’s decision

[link removed]

overruling Roe v. Wade

[link removed]

would end litigation over abortion were seriously mistaken. Among the many issues being litigated is whether laws prohibiting abortion that were enacted before Roe can now be used to prohibit abortions.

That was the issue in Kaul v. Urmanski

[link removed]

. A Wisconsin law adopted in 1849 prohibits “intentionally destroy[ing] the life of an unborn child,” subject only to a narrow exception for a “therapeutic abortion” that is necessary to save the life of the mother. Before Roe, this law was used to prosecute people for performing abortions.

But the Wisconsin Supreme Court held that the statute cannot be used for that purpose now. It said that “the legislature impliedly repealed section 940.04(1) as to abortion by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how healthcare providers may lawfully perform abortions.”

The case thus provides important guidance to courts in other states where there are old laws prohibiting abortions.

The Importance of a “Beautiful and Healthful Environment”

Michelle Garcia, Principal Attorney for the Navajo Nation

In Atencio v. New Mexico

[link removed]

, the New Mexico Supreme Court will rule on the “pollution control

[link removed]

” provision of the New Mexico Constitution, which articulates that protection of New Mexico’s “beautiful and healthful environment” is of fundamental importance to the public welfare. The clause also tasks the legislature with providing for the control of pollution and “despoilment” of natural resources, raising broader separation of powers questions that the court is expected to address.

The coalition of plaintiffs in the case — including environmental actors, youth organizations, and indigenous communities — alleges that the government has failed to satisfy its duty to preserve the state’s environment from oil and gas pollution. The case focuses on whether there is a judicially enforceable right to a beautiful and healthful environment that people can sue to vindicate under the pollution control clause and state constitutional due process, inherent rights, and equal protection provisions. It highlights an important, trending democratic question of whether an individual can square off against oil and gas in state courts.

Encouraging State Religious Liberties Arguments

Hon. Nathan Hecht, Former Chief Justice of the Texas Supreme Court, Partner at the law firm Jackson Walker, and Distinguished Judicial Fellow at NYU School of Law

The religious liberty guarantee of the U.S. Constitution’s First Amendment is binding, but it is not necessarily limiting. States can go further in protecting freedom of religion. Does Texas? The corresponding provision of the Texas Constitution, Article I, Section 6, is longer (114 words versus 16), much more detailed, and imposes a duty on the legislature to pass laws protecting “every religious denomination.” Most importantly, the Texas provision reflects the intent of those who wrote and ratified it in 1876. They were certainly influenced by the founding fathers’ views in 1791, but they had their own. After 139 years, how the state and federal provisions apply differently remains unclear. In Southern Methodist University v. South Central Jurisdictional Conference of the United Methodist Church

[link removed]

, decided in June, four justices of the Texas Supreme Court encouraged lawyers arguing freedom of religion to explain and explore Texas protections as well as those of the First Amendment.

Combating Abusive Takings

Ilya Somin, Professor of Law at George Mason University, Simon Chair in Constitutional Studies at the Cato Institute, and Author of Free to Move: Foot Voting, Migration, and Political Freedom

[link removed]

and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain

[link removed]

In Norfolk Southern Railway Company v. State Corporation Commission

[link removed]

, the Virginia Supreme Court held that a law authorizing broadband service providers to take property to install fiber optic cables across railroad-owned land violated the state constitutional requirement that eminent domain can only be used for a “public use” and that a taking for a private entity does not qualify unless it is “for the authorized provision of utility, common carrier, or railroad services.” The court unanimously concluded that because the broadband provider “is a private, for-profit broadband service provider . . . [and] not a government entity, public service corporation, or public service company . . . [it] cannot exercise the power of eminent domain for a ‘public use.’”

The case is significant because it addresses one of the constitutional amendments enacted in multiple states in the wake of the U.S. Supreme Court’s controversial 2005 ruling in Kelo v. City of New London

[link removed]

, which held that private “economic development” is enough to satisfy the public use requirement of the Fifth Amendment. These post-Kelo reforms — or state court interpretations of preexisting constitutional provisions — have frequently provided stronger protections

[link removed]

against abusive takings than the U.S. Supreme Court was willing to enforce under Kelo. The post-Kelo experience provides a potential model for other state constitutional litigation and reform efforts on property rights issues, most notably exclusionary zoning

[link removed]

. But such state-level initiatives are not a fully adequate substitute

[link removed]

for strong enforcement of federal constitutional protections in these areas.

Departing from Federal Justiciability Doctrines

Miriam Seifter, Richard E. Johnson Bascom Professor of Law and Faculty Codirector of the State Democracy Research Initiative at the University of Wisconsin Law School

With more high-stakes cases landing in state courts, and surely more to come in upcoming election cycles, we should pay close attention to state justiciability doctrines. State and federal courts and constitutions differ in many ways, and state courts may sensibly conclude that their rules for getting into court are different — and more flexible — than federal requirements.

Last month, the Arizona Supreme Court exemplified a state-centered approach to standing in Montenegro v. Fontes

[link removed]

. The majority declined to lockstep with federal standing precedent, reasoning that the absence of a case or controversy requirement in the state constitution renders standing prudential. The court ultimately held that state legislative leaders did have standing to challenge a voter-initiated campaign disclosure law as a violation of the state’s nondelegation and separation of powers doctrines.

The dissenting opinion also took a state-centered approach to standing. It argued that the court should disfavor legislative attempts to undo voter-initiated statutes, given the state constitution’s commitment to popular sovereignty and direct democracy.

State courts have many options for rejecting non-meritorious claims. They need not rely on federal justiciability principles to do so. Both opinions in Montenegro reflect an important practice of thinking about state court justiciability on its own terms and of closing the courthouse doors only for reasons supported by the state constitution.

Extending the Privacy Rights of Renters

Anthony Sanders, Director of the Center for Judicial Engagement at the Institute for Justice

The U.S. Supreme Court in 1967’s Camara v. Municipal Court

[link removed]

said that if a city wants to inspect a rental property and the tenant occupant says “no,” the city cannot go in without a warrant. But at the same time, the court said that the warrant doesn’t have to be based on actual evidence of something wrong with the property — a requirement with any other warrant. Since then, many state courts have applied Camara but few have questioned whether it applies to their own Fourth Amendment equivalents.

Just this month, though, in Rivera v. Borough of Pottstown

[link removed]

, the Pennsylvania Commonwealth Court did exactly that, rejecting the Camara standard. It marked the first time that a state appellate court has explicitly done so. The case, which may go to the Pennsylvania Supreme Court, puts cities on notice — not just in that state but elsewhere — that you don’t lose your privacy rights just because you rent your home.

Protecting Young Adults from Excessive Sentences

Robert F. Williams, Distinguished Professor of Law Emeritus at the Rutgers University School of Law

When two young adults, aged 19 and 20, were convicted of first-degree murder in Michigan, state law mandated that they receive life sentences without the possibility of parole. They argued that these mandatory sentences violated the Michigan Constitution’s ban on cruel or unusual punishment.

In 2012, the U.S. Supreme Court held in Miller v. Alabama

[link removed]

that mandatory life-without-parole sentences for kids under 18 violated the Eighth Amendment, which bans cruel and unusual punishment. The Michigan Supreme Court held in 2022 in People v. Parks

[link removed]

that its punishment clause was more protective than the federal amendment and stuck down mandatory life-without-parole sentences for 18-year-olds.

This year, in People v. Taylor and People v. Czarnecki

[link removed]

, the Michigan court extended its 2022 holding to 19- and 20-year-old “late adolescents” and required individualized sentencing for that age group. The court noted that age was relevant in sentencing, and it relied on scientific research on social and cognitive development of young people showing they have diminished culpability and greater prospects for reform than adults.

Grappling with the Right to Bear Arms

Eric Ruben, Associate Professor of Law at SMU Dedman School of Law and Brennan Center Fellow

The Iowa Supreme Court’s decision in State v. Cole

[link removed]

is one of the most significant state court rulings of 2025 because it identifies a practical path forward for constitutionally disarming individuals subject to domestic violence protection orders after the U.S. Supreme Court’s fractured Second Amendment decision in United States v. Rahimi

[link removed]

. Rahimi upheld firearm prohibitions tied to restraining orders only when a judge finds that the respondent poses a “credible threat,” leaving the many state protection orders that lack such findings in constitutional limbo.

The Iowa Supreme Court confronted that gap

[link removed]

by focusing on waiver. Jordan Cole had consented to a protection order that expressly prohibited firearm possession and warned of both state and federal consequences but did not contain a judicial finding that he posed a “credible threat.” When he was later prosecuted for possessing guns, Cole argued that the firearm ban violated his right to keep and bear arms. The court rejected that claim, concluding that Cole had voluntarily waived any Second Amendment objection by agreeing to the order’s terms.

Cole is the first state high court decision to apply waiver doctrine to firearm restrictions in the post-Rahimi landscape. It offers state courts a promising doctrinal mechanism for evaluating disarmament beyond the circumstances approved by the Supreme Court, while raising important questions about what constitutes a voluntary, knowing, and intelligent waiver of Second Amendment rights.

Procedure Undermining Abortion Rights

Amy Myrick, Senior Counsel at the Center for Reproductive Rights

Abortion rights exist in state constitutions, but getting courts to recognize them can be a hard road. Access Independent Health Services v. Wrigley

[link removed]

shows one reason why: State constitutional procedures can stand in the way.

In November, three of the five justices of the North Dakota Supreme Court held that the state’s abortion ban was unconstitutionally vague about when abortion is permitted to preserve a patient’s life and health. A two-justice dissent held that because people who adopted the North Dakota Constitution in 1889 would not have understood

[link removed]

“inalienable rights” to include non–life-saving abortion, modern-day protections cannot exist. And that dissent controlled the outcome.

Why? Because North Dakota requires a supermajority of four justices to find a law unconstitutional.

As a result of North Dakota’s procedural supermajority rule, the dissent joins a roster of state supreme court opinions that have allowed abortion bans to take effect after Dobbs v. Jackson Women’s Health Organization

[link removed]

. A theme from 2025 is that state court constitutional procedure can stand in the way of abortion rights and access. Other examples include a Georgia Supreme Court decision

[link removed]

vacating on standing grounds a district court’s finding that the state’s six-week abortion ban violated the right to liberty and a Missouri Supreme Court decision

[link removed]

reinstating abortion restrictions based on the standard for entering a preliminary injunction.

Taking Innocence Seriously

Kathrina Szymborski Wolfkot, Senior Counsel at the Brennan Center and Managing Editor of State Court Report

The Texas Court of Criminal Appeals — the highest court in Texas for criminal matters, distinct from the Texas Supreme Court (which handles civil matters) — remanded to the trial court a habeas corpus petition filed by a man on death row to give him a chance to develop his claims, including actual innocence.

What made Ex Parte David Leonard Wood

[link removed]

notable was a concurrence by Presiding Judge David J. Schenck, who forcefully opined that it should be easier for people facing execution to challenge their convictions based on evidence of innocence. The distinctive text and history of the Texas Constitution’s protections against erroneous deprivations of life, Schenck said, support granting relief if someone sentenced to death demonstrates that reasonable jurors would likely find him not guilty.

While such a standard may seem logical to a layperson — executing innocent people offends basic notions of justice, after all — such executions do not, standing alone, violate the federal Constitution. The case is a reminder that state constitutional jurisprudence need not parrot the most objectionable holdings of the U.S. Supreme Court.







In 2025, the Brennan Center’s State Court Report covered state courts and state constitutional litigation across the country. In 2026, we will redouble our efforts.



Now through the end of the month, all gifts to the Brennan Center will be matched by a generous donor, doubling your impact. Donate now to help us continue our work in 2026.

[link removed]



DONATE

[link removed]





[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center

[link removed]



Did you get this message forwarded from a friend? Sign up here

[link removed]

.

View Online

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]