the law

Aim Lower

Liberals have lost the Supreme Court for a generation. Their only hope is to seize state courts and launch a counterrevolution.

Photo-Illustration: Intelligencer; Photos: Getty Images
Photo-Illustration: Intelligencer; Photos: Getty Images
Photo-Illustration: Intelligencer; Photos: Getty Images

This story was produced in partnership with the Garrison Project, an independent nonpartisan organization addressing the crisis of mass incarceration and policing.

The Great Gorge Playboy Club Hotel, an hour’s drive from Newark, was perhaps the last place you’d expect to find a Supreme Court justice. Young women dressed in bunny ears and cottontails busily shuttled drinks across the rabbit-themed carpet to members of the New Jersey Bar Association, which had chosen the hotel for its 1976 convention and Justice William J. Brennan as the guest of honor.

It was late in the evening when Brennan approached the podium. Many of the guests had already drifted away. What they missed was the most important speech of the dignified 70-year-old jurist’s career. For the past two decades, he had interpreted the Constitution to protect the poor, the powerless, and the criminally accused, but now he watched helplessly from the liberal minority as his work was undone by four conservative Nixon appointees. On this night, he was eager to make the case that state courts could restore and even expand the rights that his Court had put on the chopping block.

Brennan argued that state courts had the ability to blunt many of the Supreme Court’s worst recent decisions by ruling that state constitutions and other state laws provided more protections than the high court was willing to offer under federal law. Despite this awesome power, state courts rarely exercised it. So Brennan asked state judges to be bold and “thrust themselves into positions of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms.”

But those who remained in the audience didn’t seem to be getting the message. Midway through his speech, Brennan gave up. “I said the hell with it [and] just quit,” he later told his biographers.

Today, we find ourselves in a similar position to the one Brennan faced — just much worse. The justice could not have foreseen the overturning of Roe v. Wade, which was decided in 1973, by a vote of 7-2 with only one of Nixon’s appointees dissenting. He could not have foreseen Donald Trump or his three Supreme Court justices, who have remade the Court and rolled back the clock by a half-century. Among the worst decisions since 2017 have been Dobbs v. Jackson Women’s Health (overturning Roe), Brnovich v. Democratic National Committee (finding that state laws making it more difficult for non-white citizens to vote did not violate federal law), Sackett v. Environmental Protection Agency (sharply curtailing the federal government’s authority to protect wetlands from pollution), and Students for Fair Admissions, Inc. v. Harvard (striking down affirmative action programs at Harvard and University of North Carolina).

Some of the Court’s decisions from the current term—like a ruling rejecting a fringe legal theory that would have given state lawmakers nearly unchecked power to set election rules—were not as extreme as many feared. But the rights of women, racial minorities, LGBTQ people, criminal defendants, and other vulnerable groups continue to be imperiled. Make no mistake: this new rightwing supermajority is just getting started, and the Supreme Court is lost for at least a generation.

Reversing the supermajority would require two conservative vacancies to occur while Democrats control both the White House and the Senate — which hasn’t happened since Lyndon Johnson was president. Indeed, there’s a distinct possibility that the current 6-3 split between conservatives and liberals will become an even more lopsided 7-2 if Republicans retake the White House in 2024 or 2028.

That bald fact means that liberals, from the grassroots to high office, must refocus their attention on state courts where they actually stand a chance. Since the founding of the Federalist Society, the right has effectively outmaneuvered the left on judicial appointments. Progressives must do with state courts what the right has already done with conservative judges: elevate liberal jurists who have principles, guts, and vision.

Advocating for this approach makes us uncomfortable. Of course, judges are not apolitical, but we have always aspired to a world in which law could not be reduced entirely to politics. Now we are arguing for more politics in law. But we see no alternative to a Supreme Court that has gone rogue. Today’s hyperactivist conservative majority has few fixed principles: Precedent matters only when it is convenient, originalism dominates unless it produces ideologically unacceptable results, and breathtaking ethical violations are ignored. The law is already being used to achieve blatantly political ends, at such cost to so many vulnerable people, that refusing to fight back would be to surrender too much. State courts are one of the last lines of defense to protect us from the loss of our most fundamental rights.

As Brennan observed, when state courts ground their decisions in state law, in most cases they have the last word on the topic. Generally, federal courts cannot overturn those rulings. This raw power can have major implications for the breadth, scope, and even the mere existence of certain fundamental rights — including to have a legal abortion, to have one’s vote count, to unionize, to seek gender-affirming care, and to escape execution.

Take Washington State, where in the past four years the state supreme court has struck down the death penalty, prohibited all life-without-parole sentences for youths under 18 and all mandatory life-without-parole sentences for anyone under 21, and invalidated the state’s statutes criminalizing drug possession — a ruling that effectively legalized drug possession and forced the state to vacate old convictions. In each case, the nine-member court went further than federal law required, invoking the state constitution as a source of broader legal protections.

Not coincidentally, the Washington court includes four former public defenders and several justices of color, an exception for state courts. According to a new report by the State Law Research Initiative, a nonprofit that supports scholarship on state constitutional rights, more than 40 percent of judges on state high courts are former prosecutors, while less than 11 percent have experience representing indigent clients. Only 7 percent are former civil-rights litigators while at least 38 percent percent came from corporate law firms — nearly as many as former prosecutors. Across the nation, there are no people of color on the highest courts in 20 states and male judges far outnumber female judges.

A diverse state-court bench matters greatly to criminal law, which we both practice and teach. On the first day of class, we tell our students that if they care about mass incarceration, they should forget about the federal court system and focus on the states. It’s an overstatement — but only a slight one — meant to grab their attention. After all, of the nearly 2 million people incarcerated in the U.S., almost 1.6 million people are in county jails and state prisons, compared with 209,000 in federal prisons.

The stakes are life-and-death. Consider Florida, which leads the nation in death-row exonerations with a total of 30, more than 10 percent of the state’s current condemned population. Since Governor Ron DeSantis entirely remade the state supreme court by appointing five of its seven justices, its judges have overturned a series of precedents in capital cases. They denied retroactive relief to those who may be too intellectually disabled to be executed under current law and abolished the need to review capital sentences to make sure they are not disproportionate or biased. DeSantis signed legislation in late April allowing juries to impose the death penalty even if they are split 8-4.  It is nearly certain that the Florida supreme court will uphold the legislation even though it just issued stays in two death penalty cases to consider its constitutionality.

Then there is abortion. In a matter of weeks, experts predict a unanimous or near-unanimous decision from the Florida supreme court overturning another precedent, one that protects the right to abortion under the state constitution. Such a decision would allow the six-week abortion ban DeSantis recently signed into law to go into effect. Thanks to the right’s long-term focus on remaking state courts, at least 14 other states have banned or significantly restricted abortion after Dobbs.

A half-century ago, Justice William J. Brennan the saw terrifying legal future liberals face. Photo: Corbis via Getty Images

Progressives are starting to wake up, though. They are fighting, state by state, to reclaim the courts in battles that until recently have escaped national attention.  These efforts are being led by a cadre of committed young lawyers, community-group leaders, labor organizers, and formerly incarcerated people. This new cohort has no patience for mainstream Democratic institutions telling them that state-court elections are unimportant or that their voters will never turn out, so don’t bother.

During the run-up to the 2020 election in Michigan, activists turned out to distribute fliers, make phone calls, and knock on doors to flip the state’s highest court. Among them was Darryl Woods, whose life-without-parole sentence had just been commuted. (Woods maintains his innocence.) Since his release, Woods has worked as a community organizer to register thousands of Detroit residents to vote, including people in jails, drug-treatment facilities, and underserved communities. “They didn’t care about the other issues,” Woods told us, describing these new voters. “But when we told them how state-court judges decide the fate of their loved ones who are incarcerated, decide abortion rights, and decide civil rights, it was powerful.”

The hard work paid off. Michigan voters elected Elizabeth Welch and reelected Bridget Mary McCormack to the state’s supreme court, creating a 4-3 liberal majority. The new majority immediately made its presence felt by authorizing a ballot initiative to repeal the state’s 1931 abortion ban, which had gone into effect after the Dobbs decision. Voters overwhelmingly approved the initiative, and Governor Gretchen Whitmer signed it into law in April. When McCormack announced her retirement last year, Whitmer appointed Kyra Harris Brown, a 35-year-old former state assemblywoman known for her criminal-justice-reform background. Brown is the first Black woman to serve on this court.

Liberal grassroots activists have also punished Democratic governors who turn to the usual suspects — prosecutors and Big Law partners — when choosing high-court judges. Disappointed by too many milquetoast judicial appointees under Clinton and Obama who failed to counter the might of the right-wing jurists, this new generation of activists is demanding the kind of boldness shown by the Biden administration, which has pushed to confirm a record number of public defenders and civil-rights attorneys to the federal bench.

A case in point: In New York, Governor Kathy Hochul had the opportunity to change the balance of the Court of Appeals (the state’s highest court) after the surprise retirement of its chief judge, who had led a conservative voting bloc since 2016. The next judge would be able to cast the swing vote in the most consequential cases, such as those dealing with redistricting. Last year, Democrats lost vital House seats in part due to the court’s 2022 decision in Harkenrider v. Hochul, which threw out legislative maps favorable to the party.

When Hochul selected Hector LaSalle, a lower-court justice, in December, progressives rebelled, citing LaSalle’s long record of voting overwhelmingly in favor of prosecution and corporate interests. Seething at the prospect that a right-leaning majority would be cemented for years to come, a coalition of criminal-justice reformers, organized labor, and civil-rights groups descended on Albany. Under siege, the Democratic State Senate rejected LaSalle.

The power of this advocacy became clear when, on her next attempt, Hochul nominated Rowan Wilson to replace the chief judge. A member of the court since 2017, Wilson had spent years in the minority writing over 100 dissents, many on behalf of low-wage workers and criminal defendants. After quickly confirming him, the Senate voted overwhelmingly to approve Caitlin Halligan, New York’s former solicitor general, as the seventh member of the court. The combination is expected to shift the court’s balance of power to the left. Peter Martin, the director of the Judicial Accountability Project at the Center for Community Alternatives and one of the leaders of the campaign, told us the Democratic senators “felt the heat. They want to be seen as progressive leaders on this.”

If New York provides a road map for how progressives can influence judicial selection in the 28 states where governors nominate judges, Wisconsin offers a powerful lesson on how to reshape the courts in the 22 states that elect them. For years, the state’s supreme court was ruled by a 4-3 conservative majority. When one of the conservative justices announced she would retire, it created an opportunity for liberals to win a majority on the court. Janet Protasiewicz, a Milwaukee County court judge, jumped into the race. Officially, it was a nonpartisan election, but Protasiewicz made no secret of her beliefs, telling voters that voting districts favoring Republicans were “rigged” and that she supported reproductive rights.

In a state Democrats narrowly won in the past two elections, Protasiewicz defeated her right-wing challenger by 11 points in April. Her messaging resonated with voters who had never cast a ballot in a judicial race before, according to Ben Wikler, the chairman of the state’s Democratic Party, who oversaw a massive get-out-the-vote effort. “The new normal is being clear about your politics as a judicial candidate,” he said. “The Dobbs decision, which ripped away a basic freedom that half the population has depended on for 50 years, shifted the plate tectonics of judicial politics for Democrats. The stakes are existential, and voters understand now that judges are making decisions that will shape their entire lives.”

It is now nearly certain that the court will strike down Wisconsin’s 173-year-old law banning abortion, which went back into effect immediately after the Dobbs decision and was the key issue in the election. It will also reconsider a lawsuit challenging the extreme gerrymandering of districts to disenfranchise Democratic voters and decide other cases affecting voting rights, including how ballots are cast and elections are administered and certified. Decisions favorable to Democrats would foreclose efforts by Republican election deniers to overturn results they don’t like, which they tried and narrowly failed to do in Wisconsin after Trump lost the presidency in 2020.

Of course, the state-court bench is only as important as the cases brought before it. Civil-rights and civil-liberties lawyers have historically focused their firepower on federal courts, which have always been viewed as more prestigious and far-reaching in influence. A win in federal court tends to get more media attention and carry more weight in the legal community. Most elite litigators have little experience bringing constitutional challenges in state court, with its regional quirks, uneven legal remedies, and reputation for backlogs and chaos. Here, too, however, progressives are beginning to change their ways.

In May, the ACLU started a State Supreme Court Initiative that seeks out successful state-court litigation efforts and hopes to replicate such wins in other states. In 2012, for example, after state chemists in Massachusetts were found to have tampered with evidence in drug cases, the ACLU joined with local criminal-defense lawyers to persuade the state’s highest court to overturn convictions in more than 35,000 cases — staggering, unprecedented relief and a result that is impossible in federal court, where the law places enormous burdens on people seeking to prove they were falsely convicted and provides no way to address wrongful convictions en masse. There is good reason to think other reform-minded state courts would be receptive to similar arguments. “Do you really think Massachusetts is the only state with convictions based on shoddy science and shady prosecutions?” asked Matt Segal, an ACLU attorney.

The effort needs to start earlier, though, by preparing the next generation of lawyers to pursue such cases. Today, most law schools don’t even offer classes in state constitutional law. Students can graduate from an elite law school without knowing that excellent state judges are writing serious scholarly opinions all over the country. It’s no wonder, then, that selling these students on clerking for state-court judges can be a challenge for professors. One of us teaches at Yale Law School and meets each year with students seeking letters of recommendation for clerkships. Nearly all of them ignore his advice to consider applying to a state supreme court. We get it. As law students, we absorbed all the same lessons of the federal-court-obsessed legal culture. Both of us clerked on the U.S. Court of Appeals for the Ninth Circuit and one of us on the Supreme Court.

It is equally important to train students to practice in state courts. One of us directs a clinic at the University of San Francisco School of Law, where such expertise is highly prized because most graduates become state-court litigators, often prosecutors and public defenders. Even though she was trained as a federal public defender, her clinic works exclusively in state court. This is because federal court is where a criminal defendant’s constitutional rights go to die. A series of federal laws enacted by Congress during the 1990s all but eliminated the possibility of post-conviction relief even for wrongfully convicted prisoners. As a result, any hope of exonerating an innocent client, overturning a conviction tainted by racism and misconduct, or reducing a life-without-parole sentence lies in state court.

The next major election is less than 18 months away, and 75 high-court judges are up for reelection with control of eight state supreme courts up for grabs. We cannot afford to ignore these races. When we were in law school, there was still hope that the federal courts, including the Supreme Court, would stand up for the most vulnerable. No longer. So we will keep telling our students what we know to be true: If you came to law school to fight for fundamental rights, you’ll make a bigger difference convincing a state court to break new constitutional ground that not even the most right-wing Supreme Court justice can touch.

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