State courts contain multitudes. This is true within a particular state court system. Several states have multiple trial courts—New York, one of the largest court systems in the world, famously has eleven—handling a wide variety of matters. It is also true across state courts and state court systems throughout the country. State supreme courts are increasingly in the spotlight as the keepers of state substantive law on important issues such as abortion and election law. But states’ various approaches to court procedures and courts’ structural role in democracy have received less attention.
This is why I like Jerry Dickinson’s work on state courts as laboratories of democracy. He urges us to see state courts not only as interpreters of law and articulators of rights (and thereby developers of public policy), but also as places for experimentation in procedure and institutional design. Readers of this blog know that procedure and court structure matter. The delay of a trial date or the justiciability of an issue in one court as opposed to another can have significant consequences for our law and our democracy. In state or federal courts, individual judges can make procedural determinations or a panel of judges can interpret law.
State courts, however, wield broader power beyond traditional judicial decisionmaking roles, which Dickinson highlights as a source of their potential. Yes, state courts, like their federal counterparts, adjudicate cases and interpret constitutional rights. But they also make rules and perform functions—political and lawmaking—that overlap with or even counter legislatures in ways that federal courts don’t.
Justice Brandeis posited that a fundamental principle of federalism was that states were free to experiment with public policy innovations without risk to the entire nation. Scholars have taken issue with the metaphor. Charles Tyler and Heather Gerken argue that state officials face many obstacles to policy innovation, while interest groups and other third-party organizations fuel change. Nevertheless, states pursue tremendous amounts of policy innovation. Discussions of this innovation, however, often focus on policies enacted by legislatures and refined by state courts through judicial opinions.
Dickinson highlights a different way of understanding state courts’ role—as institutions and rule makers. Whereas Article III confines the institutional role of federal courts, many states lack such restraints. As Jonathan Marshfield recently explored in the Duke Law Journal, state separation of powers can be different and less constraining in terms of internal checks and balances. Moreover, state courts have wide berth to experiment with procedure. For example, many state courts make their own rules of civil procedure. These experiments can affect policy in underappreciated ways. As a topic for Dickinson to explore further, most state courts also regulate the bar.
Fundamental to Dickinson’s argument is that state courts—more than federal ones—are democratic agents. Dickinson emphasizes state courts’ “democratic pedigree,” including that many are elected, which can make them more like legislators than federal judges. State courts thus are more likely to function as democratic co-equals with other branches of government. Scholarship on federalism’s promotion of states as laboratories sometimes assumes a traditional and confined judicial role—as independent adjudicators of disputes “who uphold the rule of law, serve as a check on unwieldy legislatures and executives, protect constitutional rights, and when necessary, defer to the executive or legislatures to ‘administer faithfully the laws.’” While this judicial-review-centric perspective is true in some respects, there is more to how state courts and state judges function. Some state courts possess express powers that federal courts lack.
Dickinson’s prime examples arise in the areas of gerrymandering, exclusionary zoning, and eviction moratoria. Some states empower state courts to draw political district maps in response to unacceptable state legislative gerrymandering. Dickinson also highlights the famous New Jersey Mount Laurel doctrine, where state courts took over enforcing the fair-share obligation in housing after determining that the legislature had failed to do so adequately.
The last example—eviction moratoria—is particularly illuminating. For millions of Americans, the pandemic was socially and economically devastating. As unemployment rates skyrocketed, many tenants found it difficult or impossible to pay rent. This economic crisis disproportionately affected low-income households, especially in Black and Brown communities.
Dickinson recounts state court efforts to experiment with using their administrative powers to address the homelessness and displacement exacerbated by the pandemic. Eviction moratoria took several forms at the state and local government levels, coming from governors, state supreme courts, and state legislators (as well as federal actors). One early form in which state courts acted first was judicially imposed eviction moratoria. The Supreme Court of South Carolina, for example, paused all eviction enforcement and foreclosure actions and stopped accepting eviction filings, scheduling hearings, and issuing writs in March 2020, mere days after the governor declared a state of emergency. Other states also quickly adopted this mechanism. Some state high courts barred landlords from court to initiate eviction proceedings, creating an effective moratorium.
Dickinson sheds important light on the role of state courts as institutions, rulemakers, and gatekeepers in their impact on democracy, democratic legitimacy, and substantive policy. They play this role when acting as arbitrators in cases that involve key policy issues or the potential for restraining other branches of government. They also play this role in their own right—as keepers of the keys to the courthouse, architects of procedural rules, and guardians of access to and provision of legal services. With this Article, we can all better appreciate the vital role courts play in these aspects, both within their states and as exemplars for other states to learn from and replicate.
