Public Law in the States 2023

In June 2023, the State Democracy Research Initiative hosted its third annual Public Law in the States conference, convening legal scholars and state supreme court justices to discuss a range of state-level issues at the intersection of law and democracy. This annual event seeks to foster dialogue and community around state-level public law, which often receives less attention than its federal counterpart. The conference’s keynote panel, The Work of State Supreme Courts, highlighted the perspectives of four state supreme court justices from across the country. The justices discussed distinctive features of their respective state courts, including decision-making practices and judicial selection methods. Academic panels explored topics relating to state courts, state constitutions, state institutions, and state-level democracy. Essays from conference participants are published in a special issue of the Wisconsin Law Review.

Public Law in the States: The Work of State Supreme Courts

SDRI faculty co-director Robert Yablon (University of Wisconsin Law School) moderated a panel of four supreme court justices: Justice Jennifer Brunner (Ohio Supreme Court), Justice Leondra Kruger (California Supreme Court), Justice Anne McKeig (Minnesota Supreme Court), and Vice Chief Justice Ann Timmer (Arizona Supreme Court).* Each justice began by describing a distinctive or notable feature of their court and its work. Justice Brunner highlighted Ohio’s redistricting regime, under which a political commission is empowered to draw the district lines, and discussed how this system has impacted the work of the Ohio Supreme Court. Justice Brunner noted that redistricting issues are especially salient for the Ohio Supreme Court following the United States Supreme Court’s decision in Rucho v. Common Cause, which held that partisan gerrymandering claims are non-justiciable at the federal level. She observed that the Rucho opinion tracks with a tendency in recent years for the U.S. Supreme Court to send specific issues to the states. Justice Kruger discussed a notable feature of the California Supreme Court: a substantial amount of deliberation on each case happens before the court hears oral argument. This pre-argument deliberation process presents opportunities for justices to discuss the case at hand and collaborate on decision-making in a focused way. Justice Kruger suggested this process can help build consensus and may explain in part why roughly 85% of cases decided by the California Supreme Court in recent years have been decided unanimously. Justice McKeig emphasized the diversity of the justices on the Minnesota Supreme Court across geography, gender, sexuality, race, indigenous status, and professional experience. Justice McKeig is the first Native American woman to serve on a state supreme court. In her view, diversity on the bench makes the Minnesota Supreme Court a stronger institution as a whole, and one that is reflective of Minnesotans in all corners of the state. Vice Chief Justice Timmer discussed a non-adjudicative role of the Arizona Supreme Court: overseeing the practice of law and the court system. The Arizona Constitution assigns this responsibility to the court, without input from the other branches of government. Vice Chief Justice Timmer explained how the court selects an advisory policy committee to aid in this oversight function, including by soliciting non-lawyer members of the public to join. This affords an opportunity for members of the communities served by the court to provide direct input regarding the state judicial system. The justices then spoke about the judicial selection methods in their states, and how the process for selecting judges impacts the work of their state courts. During the audience question and answer period, various justices also emphasized the need for additional resources in order to enhance the security of state courts and the transparency of their dockets. The justices also discussed pathways for students and lawyers interested in a career in state public service.

Public Law in the States: Academic Panels

Panel 1: State Courts

• Public Law Litigation and Political Time by Zachary Clopton (Northwestern Pritzker School of Law) and Kate Shaw (Cardozo School of Law); introduced by discussant Marin Levy (Duke University School of Law).
• Family Court as Problem Solving? by Tonya Brito (University of Wisconsin Law School); introduced by discussant Nestor Davidson (Fordham University School of Law).
• Dobbs, Democracy, and Dysfunction by Rosalind Dixon (University of New South Wales) & David Landau (Florida State University School of Law); introduced discussant by Kate Shaw (Cardozo School of Law).

Panel 2: State Constitutions

• Progressive State Constitutional Defenses by Bob Williams (Rutgers University Law School); introduced by discussant Elizabeth Bentley (University of Minnesota Law School).
• Springboard to Article V: Electoral Democracy and Constitutional Amendment in the States and Nation, by Wilfred Codrington III (Brooklyn Law School); introduced by discussant Richard Briffault (Columbia Law School).

Panel 3: State Institutions

• The (Local) Prosecutor by Carissa Hessick (UNC School of Law) & Rick Su (UNC School of Law); introduced by discussant Miriam Seifter (University of Wisconsin Law School).
• Constitutional Accountability Through State Tort Law by Nancy Leong (University of Denver Sturm College of Law); introduced by discussant Bob Williams (Rutgers University Law School).
• Home Rulings by Nestor Davidson (Fordham University School of Law); introduced by discussant Carissa Hessick (UNC School of Law).

Panel 4: State Public Law and Democracy

• Voting Rights Federalism, by Ruth Greenwood (Harvard Law School) and Nicholas Stephanopoulos (Harvard Law School); introduced by discussant Tabatha Abu El-Haj (Drexel University Thomas R. Kline School of Law).
• Election Administration as a Licensed Profession by Ganesh Sitaraman (Vanderbilt University Law School) and Kevin Stack (Vanderbilt University Law School); introduced by discussant Robert Yablon (University of Wisconsin Law School).
• Our Federalism and Our Democracy: Complements or Foes? by Aziz Huq (University of Chicago Law School); introduced by discussant Ganesh Sitaraman (Vanderbilt University Law School).

*Chief Justice Elizabeth Clement (Michigan Supreme Court) was also scheduled to appear but was unfortunately unable to join due to travel delays.