EDITOR’S NOTE: Each week we cross-post an excerpt from Katrina vanden Heuvel’s column at the WashingtonPost.com. Read the full text of Katrina’s column here.
While all eyes are on the confirmation hearings for President Biden’s Supreme Court nominee Ketanji Brown Jackson, 86 state supreme court battles are quietly brewing across the country. These races rarely receive coverage on cable news, but they could have an even greater impact on Americans’ lives—and on the future of our democracy.
For decades, the Supreme Court has gradually outsourced responsibilities to lower courts—giving state supreme courts increasing authority over public policy. In the early 1980s, the Supreme Court regularly decided more than 150 cases per term. In its last full term, it heard just 62 cases. Worse, a 2014 Reuters investigation found that cases are increasingly heard from a select group of lawyers—most of whom “worked for law firms that primarily represented corporate interests.”
And even among the dwindling cases the Supreme Court is hearing, it has frequently limited the scope of its authority, particularly over voting rights. Take the 2019 partisan gerrymandering case, where the court’s conservative majority threw its hands in the air and claimed the case was beyond its purview—leaving state courts as the primary judicial battleground for gerrymandering disputes. Similarly, in a 2018 gay rights case and a 2021 case on Texas’s restrictive abortion law, the court ruled that it could not issue a judgment on key legal questions, leaving them to be adjudicated back in state courts. (It just so happens that this particular interpretation of judicial authority mostly benefited Republicans.)
Read the full text of Katrina’s column here.