A 50-state look at each’s “court of last resort,” commonly called “supreme courts.”
State supreme courts don’t receive nearly as much public attention as federal courts and the U.S. Supreme Court. But a lot of important stuff happens at the state-level.
For instance, the ongoing fights over voter access and vote-by-mail procedures are taking place in these state “courts of last resort” (“CLRs” for this piece). Depending on where you live, your state’s CLR might have been the deciding factor in whether or not your state closed down to mitigate the coronavirus. It could have determined how your state restricts/allows gun access, taxes you, and regulates emissions.
For better or worse, your state’s court of last resort is a vital part of your state’s laws, democracy, and overall character as well as what might set it apart from its neighbors. With 50 states, there are 50 iterations of CLRs* and the differences can be confusing, even dizzying. Stick with us here as we take a look at some common practices among these courts as well as key differences in their structures.
*Oklahoma and Texas separate criminal and civil cases into two separate “courts of last resort.” In this piece, we’re looking only at their highest courts focusing on civil law.
Structure of the Courts & Selection of Justices
CLRs have either five (16 states), seven (28 states), or nine (six states) justices depending on their state constitutions.
Nine state courts include justices that reflect not the entire state but particular regions or districts. Some have one judge per district, others have several judges per district, and a few have a mix of district-based and at-large justices.
One of the most important differences among the states involves the selection procedures for justices. These broadly fall into three buckets: appointments by governors (26 states), elections by state legislature (two states), and elections by voters (22 states). However, there’s a great deal of variation within each of these selection processes.
Appointment by Governor
Most states’ justices are appointed by their governors; in 22 states, a nonpartisan nominating commission offers the choices to the governor, while four others allow the governor to appoint without such input. Out of this groups of states, six need the state senate or the nominating commission to confirm the governor’s appointment.
Notably, Delaware’s five-justice Supreme Court includes a “bare majority” rule for partisanship, meaning no more than three judges of a political party or ideology can sit on the bench. In other words, it prevents supermajorities on the court. It also means governors are occasionally required to appoint justices with differing views or ideologies.
Election by Legislature
In two states—South Carolina and Virginia—the state general assembly selects justices. In the former, the two chambers call a joint session to vote, whereas the latter has each chamber vote separately. Both also use this process to select judges for their lower courts.
Election by Voters
The remaining 22 states have voters elect for the justices, 14 in nonpartisan elections and eight in partisan ones.
Electing state supreme court justices, though more democratic than selection by governors or legislatures, does introduce some complicating factors.
For starters, those running need to campaign for the seat, which requires a steady flow of cash. Depending on which state they’re in and what kind of campaign they run, this does open up the election to influence from special interest groups, big donors, and dark money. A political actor could make substantial donations to a candidate (or against one) in hopes the soon-to-be justice will make decisions in the their favor.
In Illinois, conservative mega-donors Dick Uihlein and Ken Griffin have poured millions of dollars into an opposition campaign against current Democratic Justice Tom Kilbride. (This is partially due to the impending state redistricting, which the Illinois Supreme Court has a hand in.) Meanwhile in Louisiana a few years ago, oil and gas companies competed with environmental groups in fundraising efforts.
This politicization of CLRs is not isolated to states with partisan elections. Michigan and Wisconsin, nonpartisan election states, both were in the top six states with the most outside spending on supreme court races between 2015 and 2016.
There’s also some question of how “nonpartisan” these elections might be in a few states. Candidates for CLRs in Michigan and Ohio, though running on a nonpartisan ballot, are still nominated by political parties. Wisconsin candidates are not nominated by parties and run on a nonpartisan ballot, yet their party affiliations are still widely known.
Additionally, it’s not uncommon for states to circumvent nonpartisan elections—in half of these states, a majority or all of the current justices were appointed by their governors. This is due in part to how long a justice’s term is, as longer terms make it more likely a justice will age-out or retire. Few states call for a special election when this happens.
Retention & Term Limits
Unlike the U.S. Supreme Court, 47 states require some type of reelection or re-selection (called “retention” in most states) of their justices. Massachusetts, New Hampshire, and Rhode Island appoint justices for indefinite terms, though the first two do have retirement ages for justices while Rhode Island has full lifetime terms. (New Jersey has “partially” indefinite terms, which we’ll get to shortly.)
Term lengths in these 47 states range between six and 14 years. Thirteen states have a justice’s initial term much shorter (basically a “trial-run term”). For instance, South Dakota justices’ first terms are three years; if they’re retained, each term thereafter is eight years. Others, like Oklahoma, have the initial term last until the next statewide general elections, meaning they can be anywhere from one to three years long. Interestingly, New Jersey justices’ first term is seven years; if they’re retained, their next term lasts until they retire.
Like every other thing included in this piece, the retention process is not uniform across the 47 states with set term lengths. Five states—Hawaii, Maine, New Jersey, Vermont, and Virginia—do not include voters in the retention process, but instead defer to the governor or the state legislature. In New Mexico, justices must first be approved by a state judicial standards commission before running for retention. They also have to win at least 57% of the vote to be retained. Finally, Pennsylvania, which has partisan elections, has separate retention rules for justices appointed mid-term.
States are split on including mandatory age limits for justices, with 28 opting not to include them. Most states that do have an age limit set it at 70, with other placing it a bit higher; Vermont has the age limit set to 90.
Alabama and Ohio restrict justices from running for reelection after age 70—they can campaign at age 69, win, and sit on the bench until the end of their term rather than when they turn 70.
Two states, Connecticut and Pennsylvania, allow justices to assist part-time on the lower courts for a few years after retiring if they so choose.
As is the case with any 50-state comparison, this was a lot to unpack. However, it’s equally important to point out what this analysis doesn’t discuss at length, namely CLR jurisdiction, the powers of a court’s chief justice, and court ideological leanings.
Unlike the topics outlined earlier, jurisdiction is much more, though not entirely, uniform across the states. (After all, these are all courts of last resort.) Meanwhile, some states give their chief justices additional powers, such as selecting judges for lower courts.
Some states have unique powers for or requirements of their courts. For instance, Tennessee’s Supreme Court actually appoints the state’s attorney general. Meanwhile, Nebraska and North Dakota, leery of partisan or polarized decisions, require a supermajority of justices on the court to determine something to be unconstitutional.
As for court leanings, and barring states with partisan elections, it is not always easy to determine this. For states with governor-appointed justices, one could surmise a court’s leaning by noting which justices were appointed by a Republican governor versus those appointed by a Democratic one. But this isn’t an exact science, so we chose not to provide an in-depth look at this time.
In any case, there are plenty of things to include when considering whether or not a state’s court of last resort or supreme court reflects its constituency. There doesn’t appear to be any one correct way to shape a state supreme court; whether or not there are incorrect ways is up to you.
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