How State Supreme Courts Can Make Up For the Federal Judiciary's Failures

[In It to Win It]

B&S

In 1977, after two decades on the U.S. Supreme Court, Justice William Brennan wrote a law review article summarizing three of the Court’s major achievements under Chief Justice Earl Warren. First, he highlighted the Warren Court’s groundbreaking equal protection decisions, headlined by Brown v Board of Education, which forbade racial segregation in schools, and Baker v. Carr, which imposed a “one person, one vote” standard in state legislative apportionment. Second, its due process jurisprudence, exemplified by Goldberg v. Kelly, which required state public assistance programs to provide recipients the opportunity for a hearing before termination of benefits. Lastly, Brennan lauded decisions related to the “administration of the justice system,” such as Mapp v. Ohio, which required state courts to exclude illegally seized evidence from criminal trials.

Brennan wrapped by reiterating the importance of the legal system’s role in protecting Americans from “arbitrary action” by the government. “Only if the amendments are construed to preserve their fundamental policies will they ensure the maintenance of our constitutional structure of government for a free society,” he wrote. “For the genius of our Constitution resides not in any static meaning that it had in a world that is dead and gone, but in the adaptability of its great principles to cope with the problems of a developing America.”

Yet Brennan also anticipated the reactionary movement ahead in which the Court would render “door-closing decisions” that limit the federal judiciary’s “protective role.” His prediction anticipated the court’s 2022 opinion in Dobbs v Jackson Women’s Health Organization overruling Roe v. Wade, a precedent of five decades.

Brennan, once a New Jersey Supreme Court justice, had a proposed fix for this problem: He urged advocates to litigate in state courts, which, he said, “no less than federal are and ought to be the guardians of our liberties.”

In the aftermath of Dobbs, some advocates are paying attention to this advice. On January 5, in Planned Parenthood South Atlantic v. State, the South Carolina Supreme Court held that the state constitution’s prohibitions against “unreasonable searches and seizures” and “unreasonable invasions of privacy” protected “a woman’s decision to terminate a pregnancy,” invalidating a state law prohibiting abortion after six weeks of gestation. Earlier this month, the North Dakota Supreme Court put the state’s abortion ban on hold, finding that the state constitution protects the “fundamental right to receive an abortion to preserve the life or health” of the pregnant person. And just last week, the Oklahoma Supreme Court carved out a broader exception to the state’s near-total abortion ban than the state’s Republican lawmakers hoped for.