What’s the ‘Highest Court’? Not What You Might Think.
We teach schoolchildren that the U.S. Supreme Court is the ultimate arbiter of our laws. But they need to learn that their states’ supreme courts have the final word when it comes to state laws.
As future voters, students should gain a proper understanding of the impact of their state supreme courts, rather than learning to aggrandize the U.S. Supreme Court alone.
While Washington alone determines U.S. Supreme Court seats, voters elect state supreme court justices in nearly half the states. In other states, citizens can boot justices by voting not to retain them.
Coming on the heels of the demise of Roe v. Wade, the new school year — and a new U.S. Supreme Court term beginning early next month — provide the perfect moment to reassess how teachers and parents characterize the U.S. Supreme Court and other courts in the classroom and beyond.
The truth is there is not a single “highest court” in the United States — there are dozens of them. The U.S. Supreme Court is indeed the highest court for the interpretation of federal law, but each state’s supreme court pronounces the final word on state law. If a state supreme court recognizes a right under its own state constitution — say, the right to abortion access or protection against solitary confinement — the U.S. Supreme Court has virtually no power to step in.
State supreme courts therefore command a sphere of judicial power that no other court can countermand. In a case about state constitutional law, a state supreme court is in effect “higher” than the U.S. Supreme Court.
As California Supreme Court Justice Goodwin Liu said in a lecture, “The crucial point is that state courts, as the ultimate arbiters of state law, have the prerogative and duty to interpret their state constitutions independently” of the U.S. Supreme Court. State supreme courts “often do give respectful consideration to relevant Supreme Court decisions, just as they often give respectful consideration to relevant decisions of sister states,” Liu said, but each state supreme court gets the final word on its own law.
Nonetheless, children of all ages imbibe the idea of a unitary “highest court.” For example, The Supreme Court, a book for Level 1 readers, exclaims: “The Supreme Court is powerful. It is the highest court in the United States!” A 208-page book for older students titled Our Supreme Court reiterates the term “highest court” eight times.
Most Americans likely hear the “highest court” idea for the first time as children, and it’s a hard notion to shake, even in adulthood. In fact, while writing this, I realized that even I have written law review articles calling the U.S. Supreme Court “the high court” rather than one of many high courts.
Teaching the truth about state court power is more important now than ever. The dismantling of Roe and many other recent decisions on topics ranging from voting rights to excessive force by police makes it very likely that the U.S. Supreme Court will scale back or eliminate long-standing rights that it ultimately controls — rights under the U.S. Constitution.
In fact, conservatives are projected to retain a Supreme Court majority for 30 years. In contrast, judicial turnover in state supreme courts is far more common, in both appointment states and election states. No state other than Rhode Island grants a lifetime appointment to its supreme court justices. On Nov. 8, voters in 30 states will decide state supreme court seats in election or retention votes. State courts therefore will figure ever more prominently in the civil rights battles of the future as advocates seek to restore under state constitutional law rights lost under federal law.
To be clear, the rule of law depends on accepting the U.S. Supreme Court’s rulings on federal law, just as it depends on accepting state court orders on state law. In addition, the Constitution dictates that state laws must yield in the rare instances when they conflict with federal laws. Giving state courts their due does not mean minimizing, much less defying, the U.S. Supreme Court in cases where it indeed acts as the highest authority — cases interpreting federal law
But the U.S. Supreme Court itself acknowledges the rightful independence of state supreme courts. Just last year, in Jones v. Mississippi, a case in which I failed to persuade the court to vacate my client’s sentence of juvenile life without parole under the Eighth Amendment, Justice Brett Kavanaugh wrote for the majority that the court’s holding “does not preclude the States from imposing additional sentencing limits.”
While liberals might feel especially motivated to avoid aggrandizing the U.S. Supreme Court, conservatives have long celebrated the power and independence of state courts. With the country deeply divided on two critical institutions — education and the Supreme Court — teaching the court accurately could provide a rare source of consensus on both issues. It’s something to hope for, at least, in a new term at the schoolhouse and the courthouse.
©2022 Chicago Tribune. Distributed by Tribune Content Agency, LLC. David Shapiro is director of the Supreme Court and Appellate Program at the Roderick & Solange MacArthur Justice Center and a clinical professor of law at Northwestern University.
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