The Essential Role of State Supreme
Courts in the World After Roe PDF

 

By Drew Thornley

Former Staff Counsel, Americans United for Life

 

Over the past several years, judicial restraint has steadily eroded as activist federal judges -- who enjoy lifetime appointments and who do not answer to the people whose laws they interpret -- have expanded the United States Constitution and created rights not guaranteed by it. Increasingly, judges have become makers of law rather than interpreters of the law. In clear violation of the United States' long-standing tradition of separation of powers, judges have usurped the role of legislators, who, unlike judges, are entrusted with the responsibility of passing the laws that govern our nation.

 

This trend does not bode well for all of those who value the Constitution and believe in a strict and truthful interpretation of it. So long as judges continue to legislate from the bench, the Constitution will continue to be placed in jeopardy, and rights not guaranteed by it will continue to be approved by the courts. Reversing the trend of judicial activism is crucial to restoring the proper role of the federal government and ensuring that the rights enjoyed by the people of the United States are those rights guaranteed by the Constitution.

 

However, reversing activism at the federal level does not guarantee victory for the conservative policy agenda. Activist state supreme courts can reverse, through state constitutional rulings, conservative victories won in the United States Supreme Court (USSC). In 2006, for example, the Florida Supreme Court struck down Florida's school voucher program (after a similar program in Wisconsin had been upheld by the USSC). Sadly, many state courts have followed the lead of the USSC and become hotbeds of judicial activism.

 

Liberal activists who have depended for years on friendly federal judges to implement their policies when voters and legislators rejected them are well aware of this. As a result, they are increasingly turning to and focusing on state supreme courts to advance their agenda. For example, it was a state supreme court -- the Supreme Judicial Court of Massachusetts -- that launched the state-by-state campaign to promote homosexual marriage.

 

Abortion provides another example. At least 16 state supreme courts have already created a state constitutional right to abortion-on-demand. When Roe v. Wade1 is overturned, these laws will remain in effect, and abortion will be a right guaranteed by these states' constitutions. Any challenges to these or other abortion laws will be ruled upon by state supreme courts, not the USSC.

 

Conservative Victories in the Face of Judicial Activism

 

Just as activist state courts can do grave harm to a conservative constitutional agenda, courts who follow the law, rather than make their own, can support and strengthen such an agenda. With a focus on strictly interpreting the constitutions of their respective states, state court judges can reinforce their role as interpreters of law, rather than makers of law.

 

The summer of 2006 brought several victories in the fight to protect traditional marriage, showing how important state supreme courts are to the conservative agenda. First, the Washington Supreme Court held constitutional Washington's Defense of Marriage Act, which defines marriage as the union of one man and one woman (Andersen v. King County2), overturning the decisions of two lower courts that threw out the Act. The Arizona and Tennessee Supreme Courts ruled against bids to stop the citizens of these states from voting on proposed constitutional amendments defining marriage as the union between one man and one woman.3 The New York Court of Appeals (the highest court in New York) ruled against an attempt to redefine marriage in New York (Hernandez v. Robles4), and the Georgia Supreme Court overturned a previous trial court ruling declaring unlawful a Georgia state constitutional amendment defining marriage as the union between one man and one woman. Finally, positive news in the area of traditional marriage came out of the same court -- the Supreme Judicial Court of Massachusetts (the highest court in Massachusetts) -- that gave the country its first state to legalize gay marriage.5 In Schulman v. Reilly6, the Supreme Judicial Court unanimously blocked an attempt to stop a proposed state constitutional amendment defining marriage as the union between one man and one woman.

 

As has been the case with preserving traditional marriage, state courts have both succeeded and failed in their rulings on school choice. On January 5, 2006, the Florida Supreme Court, in Bush v. Holmes7, struck down (by a vote of 5-2) Florida's Opportunity Scholarship Program. The court said the program, which allows over 700 students from failing schools either to use state funds to attend a private school or transfer to a better-performing public school, violates a clause in the Florida Constitution calling for "uniformity" in public education. Andrew J. Coulson examines this activist ruling:

While the [Florida] constitution does not say that uniform governmentrun schools must be the only public education program policymakers can adopt, the court majority inferred the existence of an implicit requirement to that effect. In a dissenting opinion joined by Justice Raoul Cantero, Justice Kenneth Bell argued that there was no "textual or historical" basis for that inference. In fact, it should not have mattered who was right, because Florida case law admonishes the courts to adopt any reasonable interpretation of a statute that supports its constitutionality. Instead, the majority in Bush v. Holmes appears to have looked for an excuse to do the opposite.8

Previously, Milwaukee's successful Parental Choice Program was ruled constitutional by the Wisconsin Supreme Court (as well as the USSC), even though Wisconsin, like Florida, has a "uniformity" clause in its state constitution.

 

We also recently saw a state supreme court victory in the area of private property rights. In July 2006, the Ohio Supreme Court unanimously stopped an attempt by private developers to replace (via the government's power of eminent domain) private homes with retail stores, office space, and condominiums (City of Norwood v. Horney9). One reason the court held Ohio's eminent domain law unconstitutional is that the law allowed for the seizure of private property solely for economic development, as the USSC held permissible in the infamous June 2005 case of Kelo v. City of New London10 (holding that property may be seized for a "public purpose" and not solely for "public use"). As this case was the first major post-Kelo eminent domain case to reach a state supreme court, the victory there is a much needed response to Kelo. As state legislatures across the country pass eminent domain reform legislation in response to Kelo, state supreme courts, who will ultimately decide the constitutionality of these laws, are more important than ever before in the private property rights arena.

 

Partly as a result of the activist direction that many state courts have taken, a movement is afoot to pass term limits for judges. In response to a June 12, 2006 Colorado Supreme Court ruling that removed an immigration-reform proposal (called Defend Colorado Now) from the November 2006 ballot, a petition to limit the terms of Colorado Supreme Court justices and Colorado Court of Appeals judges has been initiated, and over 100,000 signatures have been collected. It is worth noting that Colorado and several other states use the Missouri Merit Plan to select and retain state judges/justices, which creates lifetime tenure for most judges/justices on the bench, since almost all judges survive their retention votes. According to John Andrews, "Fewer than 1% of all judges ever get dismissed by voters, leading to virtual life tenure with little accountability."11

 

The World After Roe: What Will It Look Like, and What Should We Do?

 

When Roe v. Wade is overturned, the abortion issue will be returned to where it belongs: the states. At that time, the individual state supreme courts will become more important than ever before in the fight to protect women and the unborn from the perils of abortion. State supreme courts will become the final say in challenges to abortion laws; there will be no further appeals, as the issue will have been determined to be non-federal.

 

Retention elections for state supreme court judges/justices take place every year. As such, voters need to be as informed as possible about the ideology, judicial demeanor, and voting record of each and every judge/justice who stands for retention. Unlike federal judges with lifetime appointments, state supreme court members who are subject to regular retention elections are accountable to the voters in their states/districts and, thus, face the possibility of being voted off the bench for their records while on the bench. However, as previously mentioned, voting a state supreme court judge or justice off the bench is rare. The reason for this is simple: Aside from voter apathy, most people know little or nothing about the members of their state's supreme court. If voters were more informed about their state's judiciary, more judges would see their tenures on the bench cut short by the voters. Pro-life voters are among the most passionate segment of the conservative movement, and they need information about their state judiciaries in order to ensure their conservative principles are being upheld by the members of their state courts.

 

The conservative movement has worked for decades to educate leaders and voters about the strategic importance of the USSC and to elect presidents and senators who would appoint and approve judicially conservative justices. For the cause of defending life, the same must be done at the state level; when Roe is overturned, the states will become the battlefields.

 

 

Endnotes

1. 410 U.S. 959 (1973).

2. 138 P.3d 963 (Wash. 2006).

3. See Arizona Together v. Brewer No. CV-06-0277- AP/EL (Ariz. Aug. 31, 2006) available at http://www.alliancedefensefund.org/news/pressrelease.aspx?cid=3842 and ACLU of Tennessee v. Darnell, 195 S.W.2d 612 (Tenn. 2006).

4. 2006 N.Y. LEXIS 1836 (N.Y. July 6, 2006).

5. Goodridge v. Department of Public Health, 440 Mass. 309 (2003).

6. SJC-09684 (Mass. 2006).

7. 919 So. 2d 392 (Fla. 2006).

8. "War Against Vouchers: Florida's Supreme Court wipes out school choice," The Wall Street Journal, January 15, 2006.

9. 2006 Ohio LEXIS 2170 (July 26, 2006).

10. 126 S. Ct. 326 (2005).

11. "'Ten Years and Out': The case for term limits for judges," The Wall Street Journal , August 10, 2006.