Zachary D. Clopton (Northwestern University, Pritzker School of Law) has posted State Constitutional Rights and Judicial Power (121 Northwestern University Law Review 255 (2026)) on SSRN. Here is the abstract:
On the one hand, we are in a moment when interest in state courts and state constitutional law is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasing calls for state supreme courts to rely on state constitutions to expand rights. On the other hand, we are in a moment when interest in reducing the power of the courts is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasingly calls for reining in judicial power.
Both of these views have many fans in the academy, in the commentariat, and in the public. Both are especially popular among progressives who, again, see the current Supreme Court of the United States as hostile to their goals. Indeed, it is the Supreme Court that is at the center of both arguments.
For lawyers or activists seeking to pursue a particular policy agenda—say, the protection of abortion rights—it makes sense to deploy both arguments when useful. In state courts, to argue that states have long been the protectors of rights, and cite Supreme Court Justice William Brennan and Chief Judge (and former Ohio Solicitor General) Jeffrey Sutton to have bipartisan appeal. In federal politics, to argue that the Supreme Court has become too powerful and that Congress should reassert its prerogatives.
But at least at first glance, there appears to be a deep tension between these two lines of thinking. The former seeks to empower courts to protect rights, and the latter suggests that we should disempower courts to protect rights. Also, as a matter of persuasion, the former talks up the importance of (state) judges and justices, while the latter requires persuading people that judges and justices are the problem. This tension is not merely rhetorical; it implicates core commitments about democracy, legitimacy, and institutional competence.
This Essay is not an endorsement of either or both of these views. Instead, the goal of this Essay is to interrogate whether these prominent views can hang together. It is possible that some special features of state courts or state law might respond to concerns with judicial supremacy that do not apply to the federal courts. Working out that possibility is going to require more descriptive and normative work from scholars. This Essay lays out a framework for that work. After summarizing the turns to praising state courts and to criticizing judicial power, this Essay presents a research agenda that focuses on state constitutions, state structure, state judicial selection, and federalism. In so doing, this Essay also, though less directly, seeks to make sure that constitutional structure is also part of the conversation about state constitutional rights.
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