State supreme courts are currently center stage as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees that the U.S. Supreme Court has diminished or eliminated from the Federal Constitution. While important, judicial review is but one instance of a state high court’s authority. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights and enhance the public good. Supreme courts have relied on their supervisory power to reimagine state criminal justice systems, reduce homelessness, strengthen voting rights, expand protections for immigrants, and more. Despite its significance, this feature of state court practice has gone virtually unnoticed. As advocates increasingly look to state courts to address more and more of society’s complex and consequential issues, this distinctive aspect of their power is worth exploring.
This Article unpacks the supervisory power by mapping its sources, applications, and limits. The supervisory power has a basis in all fifty state constitutions and enables supreme courts to oversee their judiciary’s workload and operations. But as this Article shows, high courts are using this power beyond the humdrum of judicial administration to enhance substantive rights and remedies, facilitate their law development and agenda-setting capabilities, and mediate interbranch frictions. This Article’s core claim is that these more expansive applications of the supervisory power are generally defensible based on the evolution of state judiciaries and supreme courts’ unique roles in state governments. The twentieth century saw a dramatic reimagining of state high courts from inferior instruments for the other branches to powerful, coordinate members of the state policymaking apparatus. In addition to overseeing the judiciary’s operations, the supervisory power thus plays an important role in a high court’s ability to contribute to state governance.
This account of the supervisory power is broad but not unlimited. The Article highlights the supervisory power’s internal and external limits and sketches its metes and bounds to help frame its future applications. The Article then considers this judicial practice within larger debates on judicial policymaking and state constitutional structure. It engages with critiques of a more active judicial role and lawmaking powers. It explains that the key institutional assumptions behind such assessments do not map so easily onto the unique structure of state judiciaries. Stepping back, the Article encourages a broader but more nuanced view of state judicial power and the function of state high courts that wield it.
Introduction
In recent years, advocates have increasingly looked to state judiciaries to serve as a backstop against federal rights retrenchment. More and more, state high courts are taking up some of the most consequential issues of our time, ranging from abortion rights and climate change to gender and racial equality. Driving this turn to the states is the realization that state supreme courts can interpret state constitutions to provide greater rights protections than their federal counterpart.
But as some court scholars have reminded us, a narrow focus on judicial review risks an incomplete understanding of how these institutions function. For those who study state courts, limiting our attention to conventional features of judicial power is more likely to result in undertheorized conceptions of what it is state courts do. However, for those looking to state courts as a possible response to regressive federal policies, such a singular view risks overlooking the full potential of state judiciaries. Indeed, for state high courts, their supervisory power—the primary source of their administrative authority—has played an essential part in their roles as constitutional innovators and in providing for the public good.
The supervisory authority is a freestanding source of flexible, discretionary power. It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is not subject to many of the traditional limits on judicial authority, like justiciability and stare decisis, enabling courts to act where they might otherwise be unable to. And courts can use the power through adjudication as well as outside of resolving a case. Thus, at its most basic level, the power enhances a state supreme court’s capacity.
The supervisory power has roots in all fifty state constitutions and provides the authority for supreme courts to manage the judiciary. It enables them to oversee judiciary personnel, control the court systems’ workloads, and supervise their general operations. Courts rely on this power to close courthouses due to inclement weather, impose workplace vaccination policies for judiciary personnel, manage complex litigation, revise and implement new jury instructions, and more.
However, this Article shows that state high courts use the power for much more than that. Indeed, despite its seemingly managerial focus, state supreme courts have relied on their supervisory power to craft sub-constitutional rights, strike statutes, and fill policy gaps left by the legislative and executive branches, among other more expansive applications.
In the past few years alone, the supervisory power has been at the center of some of the highest-profile cases in state courts. For example, following a report revealing a Massachusetts drug lab had fabricated evidence in thousands of cases over several years, the Commonwealth’s highest court fashioned a historic remedy, ordering dismissal of more than 24,000 convictions obtained as a result of the lab’s work. Several states have reformed their jury systems, emphasizing the harsh realities of racial bias in jury selection, porous nature of federal constitutional protections, and the bleak outlook at the U.S. Supreme Court for revitalizing relevant doctrines. Nearly a dozen supreme courts sought to limit the harms associated with homelessness in their states during the COVID-19 pandemic by preventing trial courts from hearing eviction proceedings.
Additional examples abound. High courts have relied on their supervisory power to craft sub-constitutional privacy rights; enhance administrative protections for incarcerated people; provide a right to civil representation for indigent parties; allow non-parties to appeal adverse decisions; and facilitate global settlements in complex civil cases. Further, courts have used their supervisory power to collaborate with other branches to make policies across a host of important areas, ranging from public health to criminal justice to housing.
Many of these examples drew national attention and helped highlight the possibilities and promise that lie in state institutions to make our legal system more just. But while the spotlight shined on the outcomes themselves, what made them possible largely remained in the shadows—the courts’ supervisory power.
Like state high courts, the U.S. Supreme Court has supervisory power as well. To sharpen our understanding of the state-court power, we should consider its federal counterpart, too. As we shall see, the two differ in important ways. The federal supervisory power is rarely used, narrower in scope, and less powerful. Despite this asymmetry, the U.S. Supreme Court’s supervisory power has attracted a significant amount of scholarly attention. That literature has largely viewed the power with skepticism. Critics question its legitimacy because it lacks a plausible source, is inconsistent with the Court’s role, and is in tension with federal separation-of-powers principles.
Things look very different in the states. The supervisory power is a regular part of supreme court practice; its applications are more expansive, and it is significantly more potent than its federal analogue. Further, state supreme courts invoke the supervisory authority proactively, instead of waiting for parties to file suit, challenging certain institutional assumptions as to how courts exercise authority. Despite its significance, the state supervisory power has generated little scholarly attention. This Article thus shines a light on a consequential yet overlooked aspect of state court practice.
The Article’s core claim is that these more expansive applications of the supervisory power are a generally defensible aspect of state supreme court practice that follows from the modern institutional development of state high courts and can be defended as a distinctive feature of their role in state governance.
To advance this thesis, Part I begins by exploring where the supervisory power comes from. It first canvasses all fifty state constitutions, showing that the power has a basis in each state charter. That constitutional foundation alone, however, does not provide the supervisory power’s full genealogy. Part I thus turns to how the relevant state constitutional provisions came to be—as well as the institutional developments that prompted them. It traces the evolution of modern state supreme courts and their need for broad, flexible sources of power. During the twentieth century, state court reformers like Roscoe Pound and the American Judicature Society sought to elevate state judiciaries from simply a collection of courts to a meaningful, coordinate branch. Their efforts changed the structure of court systems, the role of supreme courts in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. That background tells us where the supervisory authority came from and provides context for understanding the broader applications at the heart of this Article.
Part II presents a descriptive account of the supervisory authority, highlighting state high courts’ more expansive applications of the power. That account shows us that state supervisory practice is vast and varied. To account for this complexity, the Article provides a taxonomy that describes both the power’s many functions and its key attributes. It shows that the power is a highly flexible, potent form of judicial authority that enables supreme courts to effectuate the judiciary’s prerogatives as well as the public interest. This account is deepened by considering its federal counterpart. A brief review of the U.S. Supreme Court’s supervisory power demonstrates that state supervisory power differs in kind—a feature of state court practice that exceeds the boundaries surrounding its federal analogue.
Part II presents a broad, potent, and highly discretionary form of judicial power. However, the supervisory power is not unlimited. Part III explores its boundaries and limits. To account for the power’s breadth and flexibility, I draw on case law, state constitutional structure, and social science literature to propose a model I refer to as the zone of supervision that sketches the perimeter of the power’s permissible uses. I then turn to how courts are sanctioned when they step outside their zone of supervision. In short, state
constitutional structure provides tools to control and limit judicial power when courts exceed their zone of supervision.
Finally, Part IV considers the supervisory power’s theoretical and normative implications. At a conceptual level, this Article’s account of the supervisory power expands our understanding of supreme courts’ policymaking capacities and roles within a state’s broader governance apparatus. As a normative matter, Part IV considers the arguments against expansive notions of judicial policymaking and concludes such criticisms are based on institutional assumptions that do not track state judicial structures. Thus, broad uses of the supervisory power are not per se problematic; we should instead evaluate each use on a retail level with regard to a court’s own zone of supervision.
Stepping back, this Article makes three contributions. First, it offers a taxonomy that maps supreme courts’ varied uses of their supervisory power and its key attributes. Second, it plots the supervisory power’s limits and proposes a model that explains prior uses of the supervisory power and helps frame its application in the future. Finally, this Article makes a normative claim, arguing that supreme courts’ expansive uses of their supervisory power are a generally defensible and legitimate feature of state court practice.
One additional note before proceeding: this Article is in service of a larger project to understand state courts and their role in state governance. For years, these institutions have largely occupied a scholarly “backwater.” But as we have seen, that relative inattention to state courts has surfaced at the heart of some of the most pressing issues of our time, complicating those questions in the context of both state and federal public law. To that end, this Article’s thesis supports a broader call to conceive of state courts on their
own terms. We should not presume that frames and norms born in the federal courts are appropriate, ideal, or even applicable to state courts. Instead, these institutions deserve their own investment to surface their puzzles and better understand their possibilities.
I. The Creation of State Judiciaries and the Supervisory Power
The supervisory power is the lifeblood of state supreme courts. As this Article shows, it enables them to facilitate the judiciary’s day-to-day operations, protect their institutional interests, advance their prerogatives as a coequal branch in state governance, and more. To understand this power, then, we must evaluate both how it came to be and its relationship to courts’ institutional identities. This Part takes up that task. As shown in the first Section below, the supervisory authority is a constitutional power—it claims a constitutional basis in all fifty states, either through express provision or judicial interpretation of more general language.
But these constitutional roots do not tell us everything. We must also consider the creation of the underlying state constitutional provisions—and the institutions they empower. The second Section traces that story by exploring the institutional development of modern state supreme courts and its connection to the supervisory power. State court reform efforts during the twentieth century sought to elevate state judiciaries from simply a collection of courts to a meaningful coordinate branch. Those efforts changed the structure of court systems, their role in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. Those changes set the baseline for both the institution and modern supervisory practice.
Before turning to where the supervisory power comes from, we should note this Article’s definition of the concept. State courts have rarely provided a clear description of the power. They have largely relied on vague statements and citations to capture the wide universe of how they use the power. This Article’s definition reflects that ambiguity but attempts to bring clarity to the concept through a synthesis of this distinctive court practice within states and across them.
The supervisory authority is a power that state high courts possess either because it is expressly provided by a state’s constitution or because courts have adopted it by construing more general constitutional provisions. It is the primary source of administrative authority for state high courts to oversee the judiciary. It facilitates judicial administration, personnel management, and general control of the court system’s workload and operations. Those categories include both judiciary policymaking and case management decisions. While this power may at times implicate other aspects of supreme court authority, like regulatory oversight of the practice of law and judicial discipline, courts typically understand these powers as distinct from their supervisory authority.
Figure 1 below approximates the relative relationship between the supervisory power and more familiar forms of judicial authority.
Figure 1. The Supervisory Power versus Other Forms of Court Power |
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These forms of power overlap because the supervisory authority is its own standalone source of power that courts use as the sole source of a decision. But courts can also rely on the power to supplement other aspects of their authority. For example, to enhance its powers of ordinary judicial review, a court might use its supervisory power to override justiciability defects or find that a party has violated a statute and use its supervisory power to enhance an ordinary remedy.
It can also supplement other distinct forms of judicial power, like courts’ disciplinary authority over judges. For example, a supreme court’s formal disciplinary authority may avail it of only a limited number of sanctions—suspending a judge or removing them—whereas the court can discipline judges in other ways that fall below such penalties via the supervisory power, like transferring a case away from a judge for misbehavior that does not rise to the level of formal suspension or removal. These brief examples highlight the supervisory power’s hallmark of flexibility and informality, which I discuss in more detail in Section II.A.
To be sure, this simplistic diagram does not fully capture the supervisory power’s nuance. That is best demonstrated through the examples provided in Part II. This rough sketch is designed to help complement the basic definition provided above as well as the more detailed historical and doctrinal discussions that follow.
A. State Constitutional Roots
State high courts in all fifty states claim a constitutional basis for their supervisory power. In thirty-two states, high courts locate the supervisory power in the text of their state constitution. The language differs somewhat from state to state, but formulations include “[g]eneral administrative and supervisory authority,” “administrative supervision over all the courts of the state,” “general supervision and control of courts of inferior jurisdiction,” “general superintending control over all inferior courts,” “administration and supervision,” and so on. These clauses vest this power in the supreme court, the chief justice, or both. Of these states, twenty-one have a clause that explicitly refers to a supervisory authority. In the other eleven states, courts rely on the constitution’s general grant of judicial power or another specific clause, infer the power from multiple clauses related to the judiciary, or from the judiciary article as a whole.
A further ten supreme courts refer to their supervisory authority as an “inherent” power, one that necessarily flows from the structure of the state’s judiciary and the position of the court at the top of the judicial hierarchy. One could fairly describe these states as constitutional as well, since the underlying judicial structure, like the supreme court itself, is a creature of the state constitution.
In another six states, the supervisory power is said to come from both the states’ constitutions and a statutes. In the remaining two states, the source of the supreme court’s supervisory power is unclear; the high courts have either declined to offer an explanation or have offered competing explanations without a clear basis to suggest why one may be correct versus the other.
To be sure, there are additional nuances behind these descriptions and categories. In the hybrid states, all six supreme courts have said expressly that their power comes from both their statutes and their states’ constitutions. However, a close reading of their opinions suggests those may be more claims of form than of substance. Indeed, in five of those six states, courts have noted in footnotes or suggested in dicta that the statute simply recognizes the authority codified in the state constitution—it does not provide it—and that even if the underlying statutes were repealed, their power would not change.
While it is helpful to know that all state high courts recognize their supervisory authority as a constitutional power, that does not fully account for how courts use it. To deepen our understanding of the supervisory authority, we must consider how the underlying state constitutional provisions came to be by tracing the formation of modern state supreme
courts. As we shall see, that story helps explain this feature of state court practice and provides insights into its normative implications.
B. The Development of Modern State Supreme Courts
This Section reviews the institutional development of state supreme courts and the connection to their supervisory power.
It begins with the need for state judicial reform in the early twentieth century. The diagnosis for these changes came from Roscoe Pound, who argued in 1906 that America’s state courts were too disorganized and complicated, and that their operations and administration were subject to excessive legislative and executive oversight. At the heart of Pound’s critique was the observation that state governments had two branches—executive and legislative—and a collection of courts; they “d[id] not have any true judicial department.” This observation served as the central theme for the court reform movement.
This Section then examines the changes themselves and their relevance to supervisory practice. In brief, the various reforms to elevate state judiciaries to meaningfully serve as coordinate branches affected the structure of court systems, their role in state governance, and the scope of supreme court authority. Importantly, the court reform movement gave supreme courts more power—namely the supervisory power—and revised the background assumptions that governed how they use it. Those changes set the baseline for both the institution and modern practice.
1. The Need for Reform
From the colonial era through the nineteenth century, state judiciaries largely consisted of complex, fragmented networks of courts. Borrowing from the English tradition, there was a court for nearly every kind of case—admiralty, civil, criminal, equity, probate, et cetera—distributed across a multitude of jurisdictions—city, village, state, et cetera. Their jurisdiction often overlapped, and they relied on highly formal, complicated rules of practice and pleading. Suits frequently bounced between courts for years due to being improperly pled for a given forum, and when a case finally reached the proper forum, courts often resolved it on procedural grounds rather than on the merits. As a result, routine litigation was incredibly slow, unpredictable, and primarily an “elaborate contest of lawyerly arts.”
Institutionally, state courts were generally weak and insufficiently insulated from other branches, allowing them to intrude on judicial prerogatives and strong-arm their decision-making. Local governments were typically the source of funding for much of the early state court systems, creating perverse incentives for local political regimes to influence judicial behavior. Similarly, legislatures asserted a significant amount of oversight into judicial administration, especially rulemaking. They were typically slow to respond to necessary changes to procedural rules, made litigation even more complicated when they did, and used their rulemaking power for patronage and to advance partisan interests and patronage.
By the turn of the twentieth century, the public viewed state courts as too slow, complex, ineffective, and politicized. Enter Roscoe Pound. In a (now famous) speech, The Causes of Popular Dissatisfaction with the Administration of Justice, Pound diagnosed the many flaws and inadequacies in state courts and proposed a solution: a unified court system. He “attack[ed]” the existing approach to judicial administration in state courts as overly technical and inefficient, rendering courts largely ineffective. He would refine his model judiciary over the subsequent decades, but at the heart of his vision, which served as the intellectual foundation for the state courts we have today, was the goal that “[u]nification . . . result in a real judicial department as a department of government.”
Pound’s basic view was that judiciaries should consist of a fixed number of courts organized into two or three tiers (e.g., local and statewide trial courts and a supreme court), and that courts use a set of streamlined procedural rules to resolve cases on their merits more often and rely on a set of streamlined procedural rules. He also emphasized the need to vest supervisory power in a supreme court, free from legislative override, to oversee the functioning of all judiciary business. Without these elements, he argued, a state could not have a “true judicial department.”
2. State Court Modernization
Pound’s diagnosis and proposed intervention of a unified judiciary served as catalysts for broader efforts to reimagine state judiciaries. Over the twentieth century, leading scholars like Henry Wigmore and Arthur Vanderbilt, and national organizations like the American Bar Association and American Judicature Society, among others, all built upon Pound’s conceptual foundation by proposing a variety of model judiciary articles for states to adopt in their constitutions. By mid-century, reformers were in accord that their stated mission could not be accomplished unless state judiciaries had the ability and authority to control their businesses. This linkage between establishing state judiciaries as independent, coequal branches of government and centralizing control over their operations was a central theme of the reform efforts in the latter half of the twentieth century and is largely what spawned the supervisory power we know today.
Ensuring that supreme courts had the capacity to oversee the judicial branch and function as a coequal branch in state governance motivated many of the judicial innovations we see in current state constitutions. Consolidating and centralizing the many courts within state systems in favor of a clear hierarchy, with the supreme court at the top, ensured a clear chain of command and control over cases and administrative business. Supreme courts were given greater (in many instances, plenary) control over procedural and administrative rulemaking as well. Together, these changes gave the judiciary absolute autonomy over workload—enabling the supreme court to transfer cases and judges to optimize court resources and craft rules that better met the needs of the judiciary and litigants.
One particular reform along these lines warrants additional discussion: the streamlining of supreme courts’ prerogative writ power. Prerogative writs—mandamus, habeas corpus, prohibition, certiorari, and quo warranto—date back to seventeenth-century England, where they “made up the heart of the supervisory powers of King’s Bench.” At bottom, these extraordinary forms of relief provided control over lower courts to “secure the lawful and effective administration of justice.” Indeed, for much of their existence, “[t]he authority that a state supreme court exercised over lower courts was generally confined to [prerogative writs]” or writs of error—that is, what we might understand today as an ordinary appeal. Relief would be issued in summary fashion where remedies at law were unavailable or unable to address the alleged harm. These writs were tools to ensure justice was done if and when a lower court erred in some extraordinary fashion.
That early practice formed the basis for the power wielded by state supreme courts after the founding. State high courts referred to their prerogative writ power in sweeping terms: “hampered by no specific rules or means,” “unlimited,” “plenary.” This was because prerogative writs were designed to prevent an “injustice” caused by a lower tribunal, and such errors could come in many forms; thus, the remedial power necessarily had to be sufficiently flexible and adaptable.
Despite this intended flexibility, state prerogative writ practice nevertheless operated within the procedural norms of the time and thus was subject to the same complexity and formality that sparked the reform movement. Indeed, the broader effort to streamline procedure and practice in state courts included the prerogative writ system. Innovations included “all writs” or “in lieu of prerogative writs” amendments in state constitutions. These provisions vested more power in supreme courts to provide relief in instances that might not have fallen easily into existing categories and more discretion to grant relief notwithstanding technical errors from a petitioner that would have otherwise foreclosed a remedy under prior practices. In other words, distinct from ordinary appellate review, this reform enabled high courts to intervene at any stage of litigation to correct an error or omission that is sufficiently unfair or unjust.
In addition to prerogative writ powers, changes to state judicial articles granted supreme courts administrative powers, explicitly granting them policymaking power to issue orders and directives to govern judiciary and non-court personnel alike. Relatedly, courts were given regulatory authority over judges and the state bar in the form of disciplinary power. Reformers also recognized that these changes to court structure necessitated a “soft[er]” side to court business. As a truly coequal branch, judiciaries require the ability to engage in “high politics” to maintain their prerogatives. Indeed, as one commentator noted, such capacity is “essential” to realizing the reform movement’s larger goal of elevating the judiciary above a mere collection of courts. Formal design choices and informal norms, like placing the chief justice as the head of the court system, regularizing the chief’s political responsibilities, and creating government relations offices within the judiciary, for instance, help foster this capability. All of these changes flow from the need for the supreme court to supervise and oversee
the operations of the court system and each resulted in an expansion of judicial power.
New Jersey was the first state to implement “modern court” reforms. Numerous states followed suit in subsequent decades, as reformers and scholars continued to refine the ideal judiciary structure and model constitutional article. This interstate variation sparked a substantial debate among scholars as to what constitutes a truly “unified” judiciary—that is, which features distinguish unified from non-unified states. By the early 2000s, over half of state judiciaries referred to their court systems as “unified,” notwithstanding significant structural and administrative differences between them. Due to the widespread, but inconsistent, approach to unification by courts and conceptual disagreements among scholars, commentators have increasingly downplayed the value of evaluating unification at a retail level, with a granular focus on precise constitutional provisions. Instead, viewing the concept at wholesale emphasizes the reformers’ goal of establishing state judiciaries as coordinate branches of government and the associated changes in judicial perceptions and identity.
3. State Supreme Courts and State Governance
The accretion of these reforms had a significant impact on the identity of state supreme courts and informs the supervisory practice as we know it today. Specifically, there are two overlapping effects from the court reform movement that offer support for this conception of the supervisory authority. One concerns the ascendancy of state high courts’ role as a policymaker in state governance. The other relates to the increasing importance of independence for the newly established concept of a coequal branch.
The modern court reform movement came on the heels of broader governmental changes at the state level. These changes significantly influenced the policymaking capacity of state high courts. As Alan Tarr has shown, twentieth-century court reform sprang from a larger effort to shift the largely plenary policymaking power away from state legislatures. Rather than a commitment to advancing the general welfare, legislators overwhelmingly pursued personal patronage and partisan interests. Indeed, by the middle of the nineteenth century, it was apparent that organizing governance around the legislature, based on the idea that they are the most democratic, and thus most responsive branch, proved to be a mistake.
State constitutions were revised to place a substantial number of limits on legislative power, like single-subject rules, the creation of legislative sessions, and “positive” rights. These and related changes enhanced the level of judicial review applicable in state government. Relatedly, courts were increasingly seen as the primary “safeguard against slipshod government” in the states. Thus, in addition to a more expansive conception of judicial power, these design choices supported the concept of a more active, engaged judiciary.
Further, as part of the larger project of decentralizing policymaking power, state high courts were folded more directly into the state governance apparatus. In addition to their existing ability to craft new causes of action under the common law, courts were given the power to oversee the regulation of the practice of law and judicial discipline, and they were vested with the authority to exercise appointment powers, direct prosecutorial discretion, and issue advisory opinions. Others were given responsibilities to oversee statutory reform and participate in the legislative apportionment process. Some were even tasked with determining when officials in coordinate branches are no longer able to discharge their duties.
In addition to diffusing policy and governance powers to the courts, other reform-era changes enhanced supreme courts’ policymaking capacity —most notably, the prevalence of discretionary appellate jurisdiction and the creation of intermediate appellate courts. These innovations shifted high courts from a position of mechanical error correction to one of law development. These conceptual changes were broadly felt too, as no one particular combination of reforms was necessarily responsible for shifting a state high court from a reactive, adjudicatory body that intervenes as a last resort, to an engaged, proactive agent of state governance. Indeed, as Robert Kagan and others have shown, this story of institutional development reflects the “societal consensus” at the time that state supreme courts should serve as coequal participants in state governance who, like the other branches, wield their power to provide for the states’ general welfare.
The second relevant factor is the increasing importance of judicial independence—specifically, what that means and its linkage to the supervisory power. Before the court reform movement, considerations of independence were focused on judges—ensuring they were properly insulated to make unpopular decisions—but not on the judiciary itself. This makes a certain amount of sense, as state judiciaries, as a singular branch of government, were functionally nonexistent, so there was no real institution to protect. They lacked a clear political head, relied almost entirely on the other branches for operations and administration, and were funded by local governments. Institutional independence thus came not from the judiciary’s standing as a branch of government but from the independence each individual judge enjoyed.
But the reform efforts changed this. As Robert Tobin and Michael Buenger have shown, what emerged is an institutional identity of state judiciaries. As noted above, the modern court reform movement came on the heels of broader state-level governmental changes. Those structural changes included experimenting with various methods of judicial selection, like popular elections and various formulations of merit selection, that would ensure greater independence of state court judges wielding this enhanced policymaking power.
Within these broader changes were the more specific judicial reforms discussed above. Relevant here, unification centralized more responsibilities in state judiciaries by assigning control over more programs and social services, vesting administrative and operational control in the judiciary itself —including budgetary decisions—and enhancing the scope of available judicial power to manage this construct. As a result, the influence of state courts relative to coordinate branches grew tremendously. Whereas in the past, state judiciaries posed a modest political threat to other branches, their elevation as a coordinate, unified branch thrust state courts deep into the political thicket. Their increased power and influence posed potential threats to the prerogatives and interests of other, now coordinate, branches.
The reform movement thus imposed more responsibilities for non-adjudicative services onto judiciaries, made them more publicly accountable, and increased the level of inter-branch friction. These changes reestablished a baseline assumption of both supreme courts’ role and authority. These assumptions tracked the central themes of Pound and the other reformers, including the necessity that high courts wield a broad supervisory power to operate the newly established judicial branch. Further, the changes incentivized courts to develop identities that accounted for both their institutional interests as an independent branch of government, as well as the interests of the public, the primary source of accountability. It is in this institutional context that state high courts wield their supervisory power.
II. The Supervisory Power IN the U.S. and State Supreme Courts
Part I explored the source of the supervisory power by highlighting its constitutional basis in all fifty state charters. It further examined the historical context behind these state judicial articles and the broader institutional development that prompted them. At the center of that discussion is the growth of state judiciaries as meaningfully coequal branches, the expansion of the judicial role in state government, and the enhancement of supreme court power. That story provides helpful context for understanding the broader applications of the supervisory power at the heart of this Article.
This Part takes up the question of application by synthesizing the nature of the supervisory power and the ways state high courts use it. It provides a taxonomy that organizes the vast supervisory practice and distills the power’s hallmark features. To deepen our understanding of this aspect of state court practice, this Part considers the U.S. Supreme Court’s supervisory power, as well. That comparison further illustrates the breadth and scope of the state power and raises normative implications taken up in Part III.
A. State Supreme Court Supervisory Power
This Section provides an overview of the nature of the supervisory power as well as the ways state supreme courts use it. It draws on a survey of all fifty state high courts. The survey began with a review of judiciary articles in state constitutions as well as statutory codes to derive a set of keywords. Westlaw searches were then conducted for each state. Since documents germane to this study, like administrative orders, are rarely collected by Westlaw, judiciary websites were also searched. Due to the significant limitations on access to state court documents, secondary sources were also consulted.
This Article’s primary descriptive contribution is surfacing and typologizing the many in which ways state high courts use their supervisory power beyond its quotidian administrative applications. To name a few, it can expand substantive rights and enhance remedies; facilitate supreme courts’ law development and agenda-setting capacities; and help mediate interbranch frictions. In short, the supervisory power expands state supreme court capacity. It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is immune from many of the traditional limits on judicial power (e.g., justiciability) and can be wielded both outside and inside of adjudication. To be sure, this Article’s definition describes a vast landscape of judicial practice. As the first Article to provide a comprehensive review of the supervisory power’s more expansive applications, greater explication is needed to understand the concept. This Part takes up that task by sketching the many uses for which state high courts rely on the supervisory power. It then provides a holistic account of the nature of the power.
Uses
Uses of the supervisory power by state supreme courts are nuanced and varied. To demonstrate that breadth and complexity, this Section includes applications that are both representative and illustrative of state high court practice. This Section also provides a taxonomy to further conceptualize the power and its institutional implications.
One important descriptive insight this Article offers is that state court use of the supervisory power is not limited to the litigation context. Thus, this Section distinguishes between adjudicative and non-adjudicative uses.
a. Adjudicative
First consider the ways courts use their supervisory power in the course of adjudicating disputes.
i. Rights and Remedies
State supreme courts frequently rely on their supervisory power to reinforce constitutional and statutory rights. This most often comes in the form of ad hoc procedural rules or frameworks that enhance underlying substantive rights, like due process or protections against unreasonable searches. Courts also rely on the power to enhance or expand ordinary remedies. Some have even used their supervisory authority to craft substantive protections from outside their constitution’s bill of rights.
As to ad hoc rules and additional procedures, some state high courts have fashioned rules and procedures that exceed substantive protections under both the state and federal constitutions. For example, courts have enhanced the showing required for criminal defendants to waive counsel; strengthened protections for effective assistance of counsel; and extended the provision of assigned counsel to municipal court proceedings—all under the supervisory power. Such applications are common among state high courts and, as discussed below, this aspect of state supervisory practice is distinguishable from the U.S. Supreme Court’s narrower approach.
While less common, some state supreme courts have used their supervisory power to craft sub-constitutional substantive rights. Here, courts are announcing a rule under the supervisory power (rather than, e.g., the Speedy Trial Clause or Free Speech Clause) but drawing on constitutional values and principles for its content. New York’s high court, for instance, has developed a privacy right based on the “spirit of the Constitution,” and the Michigan Supreme Court has crafted substantive protections for certain grand jury indictees. These decisions resemble common-law-like reasoning and center both on an abstract value (e.g., fairness) as well as the proper functioning of the legal system. Indeed, the New Jersey Supreme Court’s “fairness and rightness doctrine,” a body of law that includes several sub-constitutional substantive and procedural rights, is the product of its supervisory authority.
Beyond rights, courts also rely on the power to enhance remedies. Specifically, courts use their authority to fashion extraordinary remedies for violations of constitutional and statutory rights and obligations. Along these lines, the Massachusetts Supreme Judicial Court’s order discussed in the introduction illustrates how some courts use their supervisory power as a way to provide broad, systemic relief. It is also used to fashion remedies for conduct that is not prohibited by statute or constitution but nevertheless violates notions of “justice,” “fairness,” and the “proper administration” of the criminal justice system. The key insight here is that courts understand the supervisory power as sufficiently flexible to remedy the variety of forms unfairness and threats to the proper administration of justice may take.
The uses thus far have focused on systemic applications to address “pervasive” inefficiencies or injustices. But the supervisory power serves as a tool to correct perceived unfairness for individual litigants as well. As explained in more detail above, this common feature of the supervisory power is a progeny of state high courts’ prerogative writ power. Courts often refer to their supervisory power as a product or consequence of this historical practice. In these cases, courts use their power, via original petition, interlocutory motion, or sua sponte, to correct some aspect of a case, often before a final judgment. The purpose behind this aspect of supervisory practice is “to ensure public confidence in the integrity and fairness of the judicial system.” Accordingly, applications vary widely from revising discovery rulings and correcting improper sentencing procedures to modifying the scope of lower-court rulings and addressing explicit judicial bias mid-trial. The representative case among all state judiciaries is where a lower court has erred, with respect to either applying binding law or discretionary decision-making, and where the resulting prejudice cannot be remedied on appeal. However, in some states, high courts have used the supervisory power along these lines where appellate relief was sufficient.
ii. Law Development
As the courts of last resort in their respective states, supreme courts are tasked with addressing matters of first impression, updating precedents where necessary, and shepherding the state’s common law, among other law development responsibilities. The supervisory power plays an active part in supporting this duty. It serves as a tool to provide more control over what a high court decides and when it decides it.
First, courts rely on the power to reach the merits in cases—a necessary part of doctrinal development. Courts can sua sponte reach cases not presently before them by transferring suits pending in lower courts, as well as reach issues not fully developed or raised by parties once a case reaches their docket. Additionally, the supervisory power overrides many of the conventional limitations on judicial power and party presentation that may limit judicial review and thus limit a court’s ability to guide state law.
For example, supreme courts from Alabama to Hawaii have said traditional standing and mootness rules do not limit the court’s supervisory power, meaning they can resolve an otherwise nonjusticiable case. At least one court has said explicitly that stare decisis does not attach to the court’s supervisory authority; others have implied as much. In several states, supreme courts have said their supervisory power exceeds the boundaries of subject-matter jurisdiction. Despite the traditional rule that “[o]ne who is not a party to an action . . . is not entitled to appeal from the judgment of a lower court,” the supreme courts of Iowa and North Carolina have relied on their supervisory power to review appeals filed by non-parties to the underlying suit. The high courts in several states have said filings are not necessary to invoke the supervisory power. Nor are cases that lack a statutory or constitutional basis for review necessarily beyond a court’s reach.
Once a case is before a supreme court, various party presentation requirements, like issue preservation, can narrow the scope of judicial review, limiting the reach of a court’s intervention. However, the supervisory power can override these rules as well. Moreover, courts suspend customary finality requirements, which often exclude certain cases from appellate review until they have reached some level of resolution, enabling courts to reach the underlying merits sooner than they otherwise would. The supervisory power can also override standards of review, a more subtle
feature of judicial review, like applying a plain error standard but not requiring a showing of prejudice.
Second, courts use their supervisory authority to develop the underlying substance of the law. Supervisory decisions not only presage state constitutional decisions; they set an analytical foundation to help frame the underlying right or value. For example, over a series of decisions, Alaska’s Supreme Court used its supervisory power to sketch a variety of procedures to protect witnesses who are compelled to testify. In the cases, the court balanced the state’s prosecutorial interests with the risk that compelled testimony may expose the witness to criminal liability. In a third case, the court held that a subsequently enacted statute providing a form of compelled testimony violated the state constitution’s Fifth Amendment analogue, reasoning it exceeded the prior boundaries set out by the court’s supervisory power. The court “piece[d] together” its prior supervisory decisions to provide the “scope” of the state constitution’s right against self-incrimination. In these cases, courts draw on the rules, frameworks, values, and policies developed under the supervisory power to, as Chief Judge Judith Kaye put it, “nourish” the state constitution.
Finally, the supervisory power can help supreme courts assert more control over how they decide an issue. Specifically, its highly flexible nature and lack of traditional limitations allow courts to resolve issues temporarily, until internal or external factors provide the basis for a more permanent resting place, like a constitutional decision, amendment, or statute. For example, in cases raising novel questions of federal constitutional rights, courts have recognized that the U.S. Supreme Court has not yet decided the issue and instead used their supervisory power to address the challenged conduct until the U.S. Supreme Court reaches it. In instances where legislation is pending or would be preferred, supervisory authority can act as a placeholder until a relevant statute or regulation is enacted.
This feature of the supervisory authority has an intersystemic aspect as well. The power can provide stability for state law in the face of federal doctrinal churn. For instance, when a line of U.S. Supreme Court case law is less than clear, state high courts may develop a variety of interpretations before the U.S. Supreme Court finally clarifies the underlying rules. That clarification may reveal that a state’s interpretation was wrong, requiring a change in the law on the books in that state. In these instances, some courts have chosen to retain their interpretation but as a matter of their supervisory authority rather than the relevant provision of the U.S. Constitution. Alternatively, where a state high court has lockstepped the state constitution and the U.S. Supreme Court has “repudiate[d]” the underlying federal rule, some state courts have chosen to resolve the issue temporarily under the supervisory power to decide at a later date whether they wish to retain the old rule under the state constitution or re-yoke it to the U.S. Supreme Court’s new one.
iii. Interbranch Engagement
Some state supreme courts rely on the supervisory power to facilitate another institutional responsibility—engaging with other branches. This includes both collaboration and resistance. In both circumstances, the supervisory power serves as a flexible tool for courts to combine the expertise and interests of each branch and to more easily navigate inevitable frictions.
When collaborating with other branches, courts often develop policies that affect both the judiciary and the state’s legal system writ large. The supervisory power’s open-ended nature helpfully provides a way to adapt and implement the interests, expertise, and views of the branches to the situation. For example, the Arkansas Supreme Court’s supervisory power was central to its collaboration with the other branches in revising the state’s criminal code. It relied on the authority to enact a revised set of procedural rules based on input from a commission consisting of representatives from all three branches, the bar, academy, and activists.
Collaboration might include operationalizing a broad policy objective announced by another branch as well. For example, during the COVID-19 pandemic, New Jersey’s governor issued an executive order allowing certain prisoners to apply for early release in light of certain health risks. Invoking its supervisory power to implement the policy, the court crafted a “framework” and expedited procedure that marshalled judicial resources to effectuate the order while balancing due process considerations.
The power can also help courts navigate interbranch tension, especially when it implicates the courts themselves. As with examples of cooperation, the supervisory power’s flexibility enables courts to tailor context-specific rules. For example, in response to a series of decisions from executive agencies perceived as coercive to the court system, the Delaware Supreme Court relied on its supervisory authority to hold that executive agencies do not have jurisdiction over judicial branch labor disputes (unlike public employee unions in other branches). Following a gubernatorial veto of judicial salary increases some considered necessary, Illinois’s high court used its supervisory power to invalidate the executive action and set aside procedural defects to enforce a lower court’s order requiring an increase in appropriations.
iv. Oversight
Finally, all state supreme courts, through individual justices, the chief justice, or an administrative office, are responsible for administering the judicial branch. Though this Article is focused on uses of the supervisory power beyond its quotidian administrative applications, some courts have taken notably expansive views of their oversight responsibilities and their judiciary’s overall workload that are worth considering.
For example, the Arkansas Supreme Court has relied on its supervisory power to appoint an “independent consultant” to audit and recommend solutions to address chronic backlog in lower court districts. In response to a constitutional amendment providing California’s lower courts with “unlimited” habeas corpus jurisdiction, the California Supreme Court promulgated a filing procedure to avoid confusion stemming from overlapping jurisdiction that would ensure an efficient and “equitable” case flow. While these examples may seem routine on their face, the courts’ explanations for their choices center “important considerations of public policy” and other normative values. In that sense, these brief examples illustrate additional ways state high courts use their supervisory power to operationalize notions of the general welfare within the proper administration of justice.
Complex litigation is another example where supreme courts rely on their supervisory power to manage systemwide workload and where choice and values can enter the decision. These uses of the power often resemble federal multidistrict litigation practice but are ad hoc and based purely on a supreme court’s discretionary evaluation of what is best in a particular situation for the judiciary, litigants, and public.
Here, too, supreme courts have used this oversight aspect of the supervisory power to achieve normative ends through the active management of such mass litigation. For example, at a time when Philadelphia’s trial courts had among the largest asbestos dockets in the country, the Pennsylvania Supreme Court used its supervisory power to consolidate almost 2,000 cases and order all pending matters to proceed immediately to a nonjury trial. At the heart of the court’s decision was its emphasis on achieving “timely justice.” Similarly, Colorado’s high court coordinated a spate of water law cases in a single trial court and promulgated an ad hoc procedure to resolve them as efficiently as possible. Animating the court’s order was its recognition that it is an integral part of the state’s lawmaking apparatus and that the complex cases could frustrate its ability to contribute to state water policy by overloading judicial resources.
Beyond control over courts and global workload, the oversight function of the supervisory power includes control over judges, too. This use of the supervisory power is distinct from formal disciplinary proceedings. Supreme courts rely on the power to ensure individual members of the judiciary are properly “administ[ering] justice” and comporting themselves with the high court’s conception of fairness and equality. Thus, race-conscious jury assignments that violate notions of equality, wielding judicial power in a way that is “oppressive and improper,” and presiding over cases in ways that fail to meet the supreme court’s quality standards are the kinds of conduct supreme courts rein in with their supervisory power.
b. Non-adjudicative
As judges and commentators have long observed of the federal courts, they are “reactive” institutions that lack a “self-starter,” meaning the judicial power requires “someone outside of the judicial system” to initiate it.
To be sure, the U.S. Supreme Court can and does set its own agenda by signaling an appetite for certain kinds of cases to external actors, selecting cases that advance their interests, and defining the questions presented to help ensure particular outcomes. These instances of judicial choice constitute a form of policymaking but nevertheless are still limited by the Court’s reactive design. Indeed, as Martin Shapiro and Alec Stone Sweet put it, “litigants activate” the Court, which, in turn, defines the “parameters” for how it impacts law and policy.
Along these lines, state supreme courts operate very differently. Relevant to this Article, wielding their supervisory power is not necessarily contingent on a litigant invoking the judicial machinery. Rather, state supreme courts can and do proactively use their supervisory power to craft policy, contribute to state governance, engage with other branches, protect their institutional prerogatives, and promote their own conception of the general welfare. It is this proactive nature of the supervisory power that enables state supreme courts to serve as more than a passive policymaker, as with their federal counterpart, but instead an active agent in state governance.
i. Policymaking for the General Welfare
In addition to the reactive applications above, supreme courts can and do use their supervisory authority as a proactive policymaking mechanism. Specifically, it serves as a source of power that enables courts to advance particular normative ideals and contribute to a state’s general welfare based on its evaluation of what is necessary. Consider some recent examples.
Fines and fees. The supervisory power played an important role in reducing or eliminating the imposition of fees and fines. While the issue is not new, the pernicious effects and racial disparities caused by over-reliance on such penalties and obligations attracted renewed attention in 2014 after a police officer killed Michael Brown in Ferguson, Missouri. The U.S. Department of Justice’s subsequent investigation and report drew a national spotlight on the ways in which some courts and local governments use fees and fines as revenue generators. In response to evidence showing the race and class implications of such policies, several state supreme courts used their supervisory powers to rethink the role of these penalties, with a more just judiciary serving as their North Star.
For example, after reviewing a report from a committee tasked with studying the impacts of court fees, the New Jersey Supreme Court invoked its supervisory authority to dismiss nearly 900,000 outstanding municipal cases and over $7 million in fines. It also narrowed the circumstances in which judges can impose fees and capped permissible amounts. The court’s actions were driven by its conception of a just court system: one that does not allow local governments to use the judiciary as a means of extraction. New Jersey was not alone—high courts in Illinois, Kentucky, Michigan, and Virginia, used their supervisory power to make similar changes to their respective court systems.
Housing moratoria. Another recent example arose during the COVID-19 pandemic, which, in addition to the public health crisis, prompted significant social and economic instability nationwide. Among the myriad effects of these shocks was housing security. Indeed, a policy challenge that government at all levels faced during the pandemic was how to balance the public health impacts of mass displacement with the economic considerations flowing from the significant job and wage losses across the country. During this period, state actors enacted a “largely unprecedented” set of housing policies to try and manage the crisis. State supreme courts, it turns out, played a proactive role, using their supervisory authority to initiate and shape these policies.
The most common form of housing policy interventions were eviction moratoria, where supreme courts would severely limit, or prohibit entirely, court-ordered evictions. As with most state-level policy responses, interventions varied. Court-imposed moratoria differed in duration, scope, and reach. Courts also framed the underlying issue differently in their orders—a feature of the supervisory power. For some, their order defined the issue as eviction itself, whereas for others, courts saw themselves as wielding their supervisory power to help limit larger social issues, like homelessness and the continued spread of COVID-19. For example, the South Carolina Supreme Court suspended all pending and future evictions for a period of months in recognition of the “difficulties,” like “housing insecurity and homelessness,” the pandemic would cause “individuals.” Tennessee’s high court prohibited all judiciary personnel from “tak[ing] any action to effectuate an eviction . . . based upon the failure to make a rent, loan, or other
similar payment,” due to “the increasing economic issues caused by this pandemic.”
In addition to moratoria, supreme courts also crafted policies and procedures that modified or supplemented their existing eviction processes. Supreme courts in Michigan and New Jersey, for instance, instituted diversionary policies requiring landlords and tenants to attempt settlement before an eviction action could be filed. Notably, the courts here were not reactively deciding disputes between parties, but were instead proactively issuing policies to try and limit the perceived social and economic effects of a crisis affecting the state.
Problem-solving courts. The instances above are more recent examples of the ways through which state supreme courts have affirmatively used their supervisory power to contribute to state governance. Another use along these lines, perhaps with a longer pedigree, is the creation of problem-solving courts. Supreme courts use their supervisory authority to create specialized dockets, procedures to manage them, and groups of judges to
hear the cases, all within the existing judicial infrastructure. These choices are made “outside the crucible of litigation.”
Like the examples above, specialty courts are another way supreme courts are addressing issues they perceive as important and using their supervisory power to fashion responses. Indeed, specialty courts originated as a judicial policy solution to increasing rates of recidivism among drug offenders and spikes in incarceration rates from a turn to tough-on-crime politics. As a former Chief Judge of New York’s judiciary explained, these courts enable judiciaries to affect a “quiet revolution” to give victims and communities “enhanced safety and a greater voice” and a way for the judiciary to meaningfully contribute to society without “simply proliferating legal process.” Supreme courts across the country have created and manage specialty courts that touch on a range of issues, from homelessness to guns, to mental health and opioids. It is not the existence of these courts that makes them notable, but the discretion available to state supreme courts to conceptualize and experiment with solutions to address issues they foresee as necessitating interventions to benefit the state’s health, safety, and general welfare.
ii. Interbranch Engagement
In addition to serving as a source of affirmative policymaking, the supervisory power provides a way for supreme courts to engage with other actors outside of litigation. Here, it provides a tool for courts to advance desirable policies and pursue institutional interests.
A common application along these lines was discussed above—courts craft ad hoc rules and procedures that influence the investigative and prosecutorial discretion of state executive branch officers. But as we know, state courts operate in a federal system, and so we should expect interactions with the federal government as well. Indeed, some courts have
relied on their supervisory power to affect the scope of federal executive authority.
For example, during the Trump administration, U.S. Immigration and Customs Enforcement (“ICE”) officers significantly increased their presence in state courthouses, arresting people coming to court as defendants or witnesses in cases unrelated to immigration. Relevant here, ICE typically relies on “administrative” warrants, which are not reviewed by a neutral party to determine if it is based on probable cause. Contemporaneous studies of this dramatic change in federal policy showed the increased threat of immigration enforcement had a chilling effect on state legal systems, preventing “immigrants from reporting crimes and participating in court proceedings.”
Several state supreme courts, particularly in blue states, responded by enacting new policies pursuant to their oversight of their state’s court system. For example, the Oregon Supreme Court promulgated a rule that required a heightened showing from ICE in order to make an arrest within or around Oregon courthouses. The high courts in Connecticut, New York, and Washington enacted similar policies for their respective court systems.
Moving beyond the executive branch, high courts can and do use their supervisory authority as a defense against perceived incursions from the legislature or to assert their prerogatives over the coordinate branch.
Consider letters of address. These are formal letters issued by state high courts to coordinate branches that provide legal analysis of pending legislation or possible executive action. In some sense, they are like advisory opinions. However, they differ in at least one important respect—advisory opinions typically require a request from another branch, whereas letters of address are issued sua sponte. For example, the Michigan Supreme Court has sent several letters to coordinate branches, as far back as the nineteenth century, noting that pending or recently enacted legislation was unlawful. Pennsylvania’s Supreme Court issued a similar letter intended to “mak[e] [their] views known” that the state constitution prohibited application of state public records laws to supreme court rulemaking procedures. Maine’s Supreme Judicial Court provided advice that pending legislation purporting to require cameras in courtrooms was unlawful. And Massachusetts’s Supreme Judicial Court issued guidance sua sponte concluding various statutes reclassifying certain members of judiciary staff as part of the executive branch were constitutional.
These examples illustrate ways supreme courts can use their supervisory authority to affirmatively engage with other branches, but the key insight is that the supervisory power enhances their ability to act affirmatively. This feature has two notable benefits. It increases their independence, since courts need not wait for a proper case challenging a coordinate branch’s actions that threatens judicial prerogatives. And it can minimize the “risk [of] creating and prolonging unnecessary tension between [the] branches of government.”
But it is the supervisory power that creates opportunities for supreme courts to consider and weigh these factors against their institutional interests and possibly act free from the confines of litigation.
Attributes
The prior Section explored various ways in which state courts rely on their supervisory power. Turning from the how to the what, the discussion below examines the nature of the supervisory power by reviewing its key attributes.
a. Freestanding
The supervisory power functions as a freestanding source of judicial authority. It is distinct from conventional aspects of state judicial power, like judicial review and common lawmaking, as well as more distinctive manifestations, like attorney discipline. This has implications on the scope and availability of a court’s authority.
First, because supervision spans a court’s adjudicative and non-adjudicative authority, the power is not limited by a supreme court’s jurisdiction. In other words, when a court’s administrative or operational interests are implicated, their power is not constrained by the various jurisdictional or procedural defects that might otherwise foreclose review. Second, because the power is freestanding and constitutionally based, it means the supervisory power cannot be narrowed by statute.
b. Lower Showing Needed
In some states, supreme courts have has conditioned supervisory relief on a certain showing of prejudice, not unlike ordinary judicial review. However, because it is a separate power, some courts have required litigants to make a showing to warrant relief that is correspondingly different from that needed to prevail on a constitutional or statutory claim. When invoking their supervisory power, the interests implicated go beyond just the rights of the individual litigant but encompass the court system’s prerogatives, as well. Additionally, unlike a constitutional claim, courts often use the supervisory power to modify or create new procedures or policies rather than invalidate statutes, further altering the institutional interests at stake in litigation.
c. Discretionary
The power is also entirely discretionary. To be sure, some courts have devised standards that purport to cabin its availability, but such decisions are purely a product of choice. For example, they ask whether the underlying issue presents an “extraordinary circumstance,” is “sufficiently compelling,” or “serves the interests of judicial economy.” Others lack a standard along these lines but instead describe use of the power as rare or infrequent to suggest there’s a presumption against its use. But these standards are judicially imposed and courts rarely explain why a given case rises or fails to meet these thresholds. Additionally, some courts have significantly increased their use of the supervisory power, notwithstanding
continued adherence to such presumptions, as in Connecticut, Illinois, and Montana.
More often, courts decline to provide any kind of standard governing their supervisory power or explicitly refer to it as a choice. The structural guardrails that ordinarily cabin discretion are similarly absent. Considerations like text, precedent, and parties’ arguments that generally impose some guidance—even if minimal—on courts in the adjudicative context are not implicated. The discretionary nature of the power is especially acute in the non-adjudicative context, as courts need not wait for a party or litigant to initiate it, thus removing one of the strongest limits on judicial power.
d. Flexible
In addition to its discretionary nature, a hallmark of the supervisory power is its flexibility. This manifests in two respects. First, rather than a fixed set of applications or possible contexts in which the power might apply, courts typically see it as open ended. The supervisory power is primarily a tool that enables the supreme court to address whatever needs arise in its responsibilities overseeing the judiciary. Those needs often result from unpredictable external factors, like a once-in-a-generation pandemic or a national recession. Thus, the power must necessarily be sufficiently adaptable. Relatedly, the supervisory authority maintains the integrity of a court system and ensures the proper administration of justice. This objective similarly requires a certain level of flexibility, as injustice can come in many forms.
Second, the underlying doctrine generated by the supervisory power is supple. Conventional constitutional analysis is generally quite rigid; the permanence of constitutional rules, additional factors like precedent and methodological commitments, and the specter of U.S. Supreme Court review can lead to quite wooden forms of decision-making. Supervisory decisions, in contrast, are explicitly understood by state high courts as closer to generic understandings of policymaking than mechanical application of existing law to fact. They explicitly consist of interest balancing and weighing various considerations, some of which may be absent from the underlying case. Further, these decisions are often—though not always—applied prospectively, which further blunts the force of precedent, minimizes the cost of overruling, and offers courts the lawmaking latitude “comparable to that of legislatures.”
However, despite its highly flexible nature, the supervisory power is not without bite. Though the U.S. Supreme Court has never invalidated a statute under its supervisory power, such a result is not uncommon among state supreme courts. Additionally, not only have state high courts narrowed the discretion of executive and legislative actors; they have also forced state actors to take discretionary action, like ordering the legislature to appropriate a specific amount of funding. As such, the open-ended nature of the power does not necessarily dilute its potency.
e. Normative in Nature
Orders and decisions issued under a supreme court’s supervisory authority are explicitly subjective in their content. To be sure, this is not to say they are arbitrary. Quite the opposite—decisions are often highly evaluative of the underlying needs of the judiciary, the state’s larger legal system, and, in some instances, the population writ large. Courts may draw on various sources of facts, policy, science, and so on, to inform their decision. But paired with its highly discretionary nature and few formal constraints, it is in this sense that the supervisory power is predominantly a means for courts to operationalize normative or subjective views of the state’s law and policy. The underlying premise of decision-making pursuant to the supervisory power is not what a prior case, statute, or other sources provide to address a given issue. Instead, courts start from a place that’s closer to first principles and ask what they “should” do.
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The discussion thus far has shown that the state supervisory power came as a result of broader state-level governmental reforms that elevated the political status of state judiciaries, expanded their role in governance, and enhanced their power. This Part has demonstrated that the power is a discretionary, flexible, standalone form of judicial authority that increases the capacity of courts and overrides many of the traditional limits on their power. Courts have used their supervisory power beyond the day-to-day management of the judiciary to enhance remedies, strengthen rights, and navigate interbranch relations.
To expand our understanding of the state supervisory power, we should also consider its federal counterpart. That comparison shows that the state supervisory authority is more expansive, potent, and legitimate. It raises important normative implications for how we evaluate this aspect of state
judicial practice and challenges some institutional assumptions concerning state high courts. I elaborate on these implications in Part IV.
B. U.S. Supreme Court Supervisory Power
Similar to state courts, the U.S. Supreme Court’s supervisory authority refers to powers that enable it to oversee the federal judiciary’s operations “in order to preserve the integrity of judicial processes.” However, as shown below, the federal high court’s supervisory power is narrower, significantly more limited, and generally considered an illegitimate feature of federal practice. Thus, the key takeaway from this brief comparison is that while state and federal supervisory powers share common elements, the former is a distinctive feature of state court practice.
Comparison
Looking at the Court’s use of the power as a whole, it largely falls along two tracks—ad hoc rulemaking and remedial enhancement.
Cases fall along the first track when relevant procedural, statutory, or constitutional sources come up short. When the Court perceives an omission in relevant statutes or rules of procedure that affects the “quality” or proper functioning of federal litigation, it uses its supervisory power to address it. On the second track, the Court uses its supervisory power as an auxiliary form of remedial authority to execute statutory and constitutional policies. In these cases, the Court perceives that the existing enforcement mechanism fails to sufficiently implement a statute’s underlying objective or constitutional right’s core values, then uses the supervisory power to span the remedial gap. These features of the Court’s supervisory power are similar to the applications discussed in Part II.A—state high courts use their own authority along the same lines.
The federal supervisory power is also flexible, consisting largely of balancing by the justices. Some scholars have described it as “procedural common law” or “procedural lawmaking.” Others have referred to supervisory decisions as “essentially legislative” in that the Court’s reasoning is more akin to policymaking than legal analysis. This, too, parallels the state supervisory power.
Despite these similarities, there are significant differences between state and federal supervisory powers. Notably, the Court’s own power is limited to adjudication, unlike its state counterparts. Further, when it crafts ad hoc rules, the protections they afford litigants rarely exceed existing Constitutional limits—i.e., federal supervisory rules seldom offer more protection than the Constitution. And the Court has never invalidated a statute with its supervisory power. In these ways, it is fair to say that the U.S. Supreme Court’s supervisory authority is narrower and less potent than its state-level alternative.
Judicial Administration and Constitutional Structure
The differences between the state and federal powers can primarily be explained by structural features of the state and Federal Constitutions and their respective judiciaries.
As discussed in Part I, state court systems evolved into a unified model, placing the supreme court as the administrative head of the courts and centralizing in the high court operational powers and responsibilities. The federal courts followed a different path. Federal court reformers, like William Taft, pursued a decentralized design. While the Supreme Court is the highest court of the judiciary, administrative and operational responsibility is diffused across a vast network of judicial agencies.
For example, the Judicial Panel on Multidistrict Litigation both consolidates complex civil cases in a single trial court for pretrial proceedings and fashions rules that govern relevant procedures. The Administrative Office for the federal courts oversees the judiciary’s pretrial supervision and probation services for criminal defendants. The Judicial Conference serves as the courts’ primary policymaking arm, developing policies to implement the myriad statutes governing the federal courts, as well as advising Congress on the federal judiciary’s needs and interests. Together, they create a constellation of supervision. Thus, whereas supreme courts administer state judiciaries, the federal court system is administered by the federal judiciary.
Further, unlike state courts, the administrative power of the federal courts is almost entirely statutory. This structural distinction raises institutional considerations as to the scope of the power courts wield and the source of the prerogatives behind it. Since the various judicial agencies are creatures of statute, many of the first-order policy choices are made by Congress rather than the Supreme Court. Even where Congress delegates broad discretion to the judiciary, it is wielded by a vast bureaucratic apparatus, rather than a single decision-making institution. To be sure, the Chief Justice wields a significant amount of influence over this system, but the underlying structure is sufficiently decentralized as to allow for inter-agency conflicts and even for agencies to countermand the Chief Justice’s own prerogatives. In these ways, the structural distinctions between how state and federal courts are administered plays a substantial part in the scope of the supervisory authority available to the respective high courts.
Constitutional structure similarly contributes to the differences between the state and federal supervisory powers. The source of the federal supervisory power is contested in the literature, but the federal government can only exercise those powers provided for by the Constitution, and scholars generally agree, whatever its source, that Article III significantly limits its scope. Broad uses of the supervisory power is said to exceed these limits by providing the justices with a “freestanding” source of policymaking authority that enables them to resolve disputes based on normative assessments of justice and fairness, rather than a statute or constitutional provision. In other words, sketching public policy, crafting the suite of remedies available for violations, and determining the methods of enforcement are all issues that fall to nonjudicial branches. State constitutions, in contrast, limit and distribute powers rather than grant them, and as discussed in Part I, modern government reform allocated greater policymaking responsibilities to supreme courts and created the supervisory power as one of their primary tools to do so.
In sum, the U.S. Supreme Court has a supervisory power that shares several features with its state counterpart. It is flexible and has largely served as a source of policymaking power to craft ad hoc procedural rules and enhance remedies. However, the two differ meaningfully. The federal power is both rarely used and narrower in scope. It is limited to adjudication, rarely afforded parties the level of relief seen in state courts, and never served as the basis to invalidate a statute. These distinctions are largely products of the fact that state constitutions generally allocate more administrative policymaking power to state courts than their federal counterpart and that power is centralized in state supreme courts whereas in the federal judiciary it’s diffused across a host of actors.
III. Boundaries and Limits
The discussion thus far has described the supervisory power of state supreme courts and connected this feature of state court practice to the institutional development of modern state judicial systems. That analysis defends the broader uses of the power reviewed in Part II as both institutionally and constitutionally grounded. But this Article’s thesis is a qualified rather than wholesale defense of the practice. This Part thus considers the supervisory power’s limitations. As Part II showed, the supervisory authority’s applications are vast and the power itself quite discretionary. To account for this breadth and ambiguity, this Part proposes a model it terms the zone of supervision to sketch the supervisory power’s boundaries. It then discusses how state constitutional structure provides tools to sanction courts when they cross them.
A. Boundaries
This Section sketches the supervisory power’s metes and bounds through a model that both explains prior uses of the power and helps frame how courts might use it in the future.
The model relies on two variables drawn from the descriptive and institutional accounts above: the legalness of the underlying issue and its proximity to judiciary interests. Together, the variables create a two-dimensional space this Article refers to as the zone of supervision, which represents the idealized conception of the supervisory power. This perimeter demarcates the scope of a court’s supervisory power. Uses that fall outside the scope should be viewed with skepticism. Section III.B explores the various sanctions available when a court does wield its power beyond its zone of supervision. But first, this Section unpacks the model by exploring its two variables.
Legalness
Legalness here refers to the nature of the underlying issue or intended application. Based on this attribute, supreme courts may consider the supervisory power to be appropriate or ill-suited to addressing the question. In this context, legalness falls along a spectrum. The spectrum turns on the informal nature of the supervisory power and the fact that it overlaps with other forms of judicial authority. On the one end are applications of the power that are insufficiently legal or too policy-like. At the other end are applications that are too legal.
State high courts consider applications of the supervisory power as too policy-like when they implicate a multitude of competing interests and lack a basis to weigh them, or have multiple potential resolutions without clear criterion to evaluate them. For example, when asked to impose a requirement that jurors in a criminal proceeding identify their race before voir dire, the Connecticut Supreme Court declined, explaining that the central issue—the interaction between the ways jurors self-identify with the perceptions of prosecutors—was too complex. Iowa’s high court similarly refused to craft a rule under its supervisory power to require certain probation proceedings precede related criminal trials, explaining that such a rule implicates sufficiently complex questions of public safety best left to the legislature.
At the other end of the spectrum are applications that are too “legal,” meaning courts decline to exercise their supervisory power because the issue calls for a more formal or durable source of power. For example, North Carolina’s supreme court declined to use the supervisory power to reach the merits of an as-applied challenge to a statute in a consolidated case because it was appealed before any record development in the individual actions. And Kansas’s high court refused to use its supervisory power to issue ad hoc relief, reasoning the precise remedy sought already existed in a statute.
Proximity to the Judiciary
The supervisory authority’s purpose as a power supreme courts wield to oversee and manage the judicial branch serves as a boundary as well. Application of the supervisory power is sensitive to its relative proximity to the judiciary and its responsibility overseeing a state’s justice system. That is not to say the supervisory power is limited to contexts that only concern the judiciary, but it is to suggest that there must be a sufficient nexus between the policy or relief sought pursuant to the supervisory authority and judiciary operations and its interests.
On one end is high proximity to the judiciary. While comparatively rare, there may be some contexts where supreme courts might see their intervention as unwarranted or inappropriate. This arises in areas where lower court discretion is typically expected, like decisions related to appointing counsel, courtroom management, contempt orders, and so on. But for the most part, situations with a significant nexus to judicial operations or interests will warrant use of the supervisory power.
On the other end are issues that are too remote from the judiciary’s interests or administration. As the relationship between the judiciary’s interest in the proper administration of justice and responsibility for operations and the sought-after relief grows more attenuated, supervisory power is considered less appropriate. For example, crafting evidentiary rules or rules of criminal procedure is closer to the judiciary than announcing a rule under the supervisory power that would directly control law enforcement conduct. And sketching rules concerning public access to internal records for a component of the judiciary differs materially from an agency that is constitutionally separate.
As noted, both variables—legalness and proximity to the judiciary—exist on spectrums. Bringing them together, we can see a sweet spot where the supervisory power is best suited or most appropriate. This Article terms the area the zone of supervision. It is in this space that courts should wield their supervisory power. Applications that fall outside its contours should presumptively be viewed as overreach. Figure 2 below serves as an illustration.
Two points of clarification are warranted. First, this model is not based on fixed points. In fact, the variables are contingent. As discussed in Part II, the power is highly discretionary and flexible. This adaptability allows courts to frame applications of the power in different ways that may place it within or beyond the zone of supervision.
Figure 2. Zone of Supervision |
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For example, consider again the pandemic eviction moratoria. Suppose two courts issue moratoria that are identical in every way except the reasons for them. Court A says it is invoking its supervisory power because it feels that the potential harms to unhoused people during a historic pandemic outweigh the economic harms to landlords. Court B explains that due to social distancing requirements, the number of cases the judiciary can process is significantly reduced and that it must prioritize criminal cases, custody disputes, and domestic violence hearings over eviction proceedings due to speedy trial requirements and liberty interests. The outcomes under either framing are essentially the same—no eviction proceedings—but one might reasonably think Court B’s moratorium is closer to the heart of its zone of supervision.
These choices reflect a linkage between how courts frame applications of the power and their understanding of the specific contours of their zone of supervision. To a certain extent, this is to be expected, as the contextual
nature of a given supreme court’s power is well documented in the literature. Indeed, interstate variation is not uncommon.
For example, consider how state high courts divided over a rule requiring law enforcement to record custodial interviews. Several courts considered the issue under state and Federal Constitutions as well as the supervisory power and split on the question.
The high courts in Minnesota, New Hampshire, New Jersey, and Wisconsin, for instance, understood the question to be well within the bounds of their supervisory powers’ zone of supervision, as it implicated their duty “to take all appropriate measures to ensure the fair and proper administration of a criminal trial.” For the supreme courts of Connecticut, Kentucky, Maryland, and Vermont, though, the issue neither raised a constitutional question nor was it appropriate for supervisory relief and was thus best suited for the legislature. There are other examples, and they
each illustrate how the variables within the model sketched above are not fixed across states but, due to the nature of the doctrine, are quite fluid.
Second, when an application of the supervisory power falls outside of the zone of supervision, it does not mean such a use of judicial power is inappropriate or illegitimate. Developing a rule or framework may be well within the court’s power—but just not its supervisory authority. For example, a court may determine requiring custodial interrogation of juvenile suspects is outside its zone of supervision, but it is required by the state constitution’s due process clause or a provision of a relevant statute. The supervisory authority is a standalone power and can thus supplement other forms of judicial power as well as serve as an alternative basis for a court to act.
- Limits
A court’s zone of supervision is subject to both internal and external factors that police its boundaries. But both factors implicate the state’s political environment.
Internally, as multimember bodies, a supreme court’s composition is crucial to how and when it wields power. The supervisory authority is no exception. Thus, changes in a court’s composition can influence whether a given application of the supervisory power falls within the zone of supervision or should instead be seen as exceeding authority. For example, in the early 2000s, the Michigan Supreme Court experienced “deep divisions” along these lines. After decades construing the supervisory power broadly, a new majority of the court took a narrower view of its zone of supervision.
While these internal factors can limit the supervisory power, the primary checks are external. Indeed, state constitutions “prioritize[] external checks on government more than internal checks.” Following the “first wave” of state constitutions at the founding, subsequent charters from California to Connecticut emphasized control of government through novel structural innovations, like single-subject rules, statewide gubernatorial elections (versus legislative selection), and the creation of referendum, initiative, and recall processes. It is these unique structural features that offer legal and political tools to constrain government authority. Thus, the most consequential check on state judicial power is the state’s political processes, as defined by a state’s particular constitutional structure, norms, and history.
Consider some of the relevant structural features common to state constitutions. The vast majority of justices stand for some kind of election. And even in the states that rely on a different method of selection, those mechanisms are not distorted by structures like the Electoral College. These features offer some level of majoritarian control over who is wielding judicial power. Further, with one exception, all state constitutions impose mandatory retirement, term limits, or both, which help facilitate churn as to court personnel. And the meaningful availability of popular initiative and amendment can similarly serve as a form of judicial sanction. Taken together, these and other structural considerations play, as Laura Langer has shown, “defin[ing]” roles as to the contours of a supreme court’s power.
The coordinate branches similarly channel a state’s politics to influence the shape of a court’s power and what judges consider overreach or lack of compliance. As Meghan Leonard has observed, the coordinate branches of state government “have increased ability to fight back” against state supreme courts, relative to their federal counterparts.
Both branches have constitutional and political tools that can narrow and check courts. In state’s that rely on executive appointment, for instance, governors have used this authority to reconfigure courts they think of as activist, a tack Govenor Chris Christie attempted in New Jersey. Executives have also used their fiscal powers to slash court budgets or offer lower court judges raises in exchange for support of measures that check supreme court power. As leaders with a statewide base, governors have also successfully galvanized popular support via direct democracy to bypass the legislature and override or countermand the courts.
State constitutional structure and politics similarly afford legislatures several tools to meaningfully check judicial power. In the states where legislatures play a role in reconfirming or retaining justices, Thomas Gray has suggested the availability of such a sanction can and does chill potential abuses of judicial power. Legislatures can also use their impeachment power as a way to threaten or check judicial overreach. Similarly, there is a growing literature exploring the effects of court-curbing legislation at the state level that shows it can limit court power through direct (modifying substantive or procedural features) and indirect (galvanizing public support against the court) means.
State constitutions also provide the possibility of constitutional amendment, which can check judicial power and modify its undesirable applications. Studies of the constraining role of such measures suggest that using amendments to keep statutory and constitutional texts brief and detailed through frequent revision can “limit . . . the judiciary’s capacity to shape public policy” by narrowing their interpretive discretion and “minimiz[ing] the need for ongoing judicial determinations in the development of evolving public policies.”
As a result of many of these structural features, most state high courts operate in closer proximity to their state’s political thicket than their federal counterparts. As discussed in Part I, this was an intentional design choice as part of court unification efforts. That said, not all courts and chief justices are equally adept at the judicial statesmanship aspect of their jobs. In this way, a court’s political savvy can (perhaps subtly) influence the boundaries of a court’s power and thus its zone of supervision as well.
In sum, the distinctive vision for government that elevated supreme courts to truly coordinate branches and produced the supervisory power was also responsible for the constitutional features that limit it. These structural considerations produce internal and external political factors that can genuinely sanction and check court power. Indeed, the state public law literature has long recognized state courts are subject to political forces to a degree “unknown in the federal system.” The accumulation of these elements produces a governance structure capable of “absorb[ing]” broad applications of judicial power “much more constructively than the federal system.”
With these boundaries and limits in mind, the next Part considers what to make of the supervisory power, as well as its broader implications.
IV. Implications
During the nineteenth and twentieth centuries, states from Alaska to Maine revised and redefined the structure of their governments through a flurry of constitutional conventions and amendments. Among other things, these changes elevated state judiciaries to equal status with other branches, made them more independent vis-à-vis the other branches, reconceptualized the role of state high courts by expanding their responsibilities, made them more accountable to the public, and, importantly, deliberately increased their power.
The increase in power and political status gave high courts more tools to control their operations and advance their interests. The supervisory power is one such tool and, as Part II shows, courts have used it beyond its routine administrative applications to make and shape policy across a range of contexts. This policymaking dimension of the supervisory power implicates a host of theoretical and normative questions.
This Part works through the major threads of those analyses. Conceptually, this Article’s account of the supervisory power suggests a more active role for courts within the state policymaking apparatus in which they operate as equal partners with the other branches to advance the state’s general welfare. The supervisory power provides high courts with a more precise and flexible tool to contribute to a state’s ongoing governance project. To be sure, this account of a supreme court’s role raises normative questions related to the legitimacy of judicial policymaking. While a comprehensive theory of interbranch relations is outside the scope of this Article, Part IV.B engages with some of the primary critiques of judicial lawmaking. In brief, the institutional assumptions that animate these important arguments do not map so easily onto the separation-of-powers principles at the heart of state constitutions, nor the institutional assumptions that underlie how state judicial power is allocated.
A. Theoretical Implications
At a basic level, the supervisory power provides an additional tool for supreme courts to actively participate in state governance, within adjudication and outside of it. While the power can perform that function across a range of applications, its capacity to provide signaling, facilitating, and coordinating functions is especially important.
As a signaling device, supreme courts can call on the other branches to take action or they can share their perspectives on the underlying legal or policy issues outside of the strictures of ordinary constitutional litigation. For example, by enhancing constitutional values via procedural rules, courts can share concerns regarding law enforcement tactics without barring the behavior entirely as an “unreasonable search” or “cruel and unusual punishment.” Similarly, an area of law or policy might benefit from the unique tools and institutional capabilities of the legislature, but various exigencies or other factors may necessitate a temporary solution. Here, too, courts can signal the policy gap for the legislature and offer an initial solution that reflects the judiciary’s perspective and expertise.
The supervisory power similarly enables courts to operationalize and facilitate policies crafted by other branches. The decision by New Jersey’s high court to fashion a framework implementing the governor’s prisoner release policy during the pandemic is illustrative. There, and in similar examples, high courts invoke the supervisory power to effectuate the policy choices other branches have codified.
Supreme courts can also coordinate actions between and among the branches towards effective governance. Consider again the Arkansas Supreme Court’s decision to bring the branches together to redraft the state’s criminal code from the ground up, or consider the California Supreme Court’s Collaboration on Mental Health Issues that resulted in related legislation. High courts across the country have similarly relied on their supervisory power to engage the other branches and channel their collective roles towards a specific policy goal. These examples demonstrate how the supervisory power enables courts to help harness the state’s full policy capacity towards a shared objective, or at least provide a venue to align on what those shared objectives are.
These features illustrate some of the ways in which the supervisory authority empowers courts to contribute to state governance by engaging with other branches. Part II illustrated how supreme courts can make policy directly, in adjudication and beyond it. Together, we see how the supervisory power expands a supreme court’s policymaking capacity beyond the binary means afforded by judicial review. These applications of the supervisory power highlight a distinctive role for high courts in state governance, thus raising broader implications for allocation of powers and interbranch dynamics.
Some recent work on state separation-of-powers principles suggests that a core commitment at the heart of state constitutions is effective government. Scholarly accounts have observed that state constitutional structure favors practical over theoretical conceptions of institutional relations. John Devlin, for instance, has argued that the distinctively mixed design of state government also suggests state constitutional structure prioritizes pragmatism and practice over political theory. This work rejects generic notions of government structure and institutional assumptions based on the Federal Constitution. Instead, scholars have elaborated on the significance of the unique structural arrangements and deliberate design choices in state charters.
This work frames state interbranch relations almost exclusively around conflict and contestation. But as Jonathan Marshfield has shown, a Madisonian theory of separation of powers finds little purchase in state constitutions. In other words, the notion that “ambition can be made to counteract ambition” between the branches is not the organizing principle behind state institutional structure. Rather, Dan Rodriguez has suggested that the core commitment that animated modern state constitutional development is good government. People prioritized a structural regime that is “pragmatic” and can provide for their general welfare. Part I explored this reorientation in the specific context of court reform—it was a catalyst for the
supervisory power—but Rodriguez shows it applies across the entire constitutional structure.
Developing conceptions of interbranch relations that prioritize conflict or minimize collaboration leaves this core aspect of state constitutional structure undertheorized. To be sure, friction and “showdowns” are inevitable (and perhaps desirable). But developing conceptions of interbranch relations that focus on contestation limits the explanatory value of such theories and points towards a parochial conception of state constitutional structure.
This Article’s account of the supervisory power helps widen our lens accordingly and lays the groundwork for a more fulsome analysis of interbranch relations that elevates the role of cooperation. It demonstrates some of the ways the supervisory power can serve as a tool for courts to contribute to the governance process through expanded policymaking, filtered through the judiciary’s institutional expertise and distinctive political incentives (i.e., their zone of supervision).
B. Normative Implications
With this conceptual analysis in mind, we might ask then what we should make of the supervisory power. As discussed above, and noted throughout the Article, the supervisory power implicates foundational questions of state judicial power and role. Absent a comprehensive theory of state courts, though, we cannot fully evaluate the supervisory power’s normative implications. Thus, in working through the primary themes of that analysis, this Section’s discussion is accordingly tentative and brief.
We might fairly describe the supervisory authority as a judicial policymaking tool. As noted in Part II, the power plays a direct (e.g., ad hoc procedural rulemaking) and indirect (e.g., reaching a constitutional issue no party raised) part in enhancing a court’s capacity to make and influence state policy. To evaluate such aspects of judicial power, the courts’ literature often inquires as to whether courts are wielding the proper power and whether they are using it appropriately. This is a vast literature that spans disciplines from law to social science, but two variables common to analysis along these lines are legitimacy and a court’s proper role.
It is fairly uncontroversial to say that American constitutional governance entails some level of judicial policymaking. What is typically contested is how much is too much. Robert Kagan famously offered an institutional frame he termed “adversarial legalism” to help critique what he saw as an overreliance on courts as policymakers. The thrust of Kagan’s nuanced argument against a broader vision of judicial policymaking is that American litigation is overly formal and participatory, which narrows the inputs and available tools for courts, creates higher political and economic costs, and as a result is generally less desirable than less court-driven alternatives.
This critique of judicial policymaking is worth considering. However, I think the account of the supervisory power sketched here, and the broader institutional assumptions it brings with it, undermine or perhaps even obviate some of the concerns Kagan’s theory advances. In brief, Kagan’s critique assumes judicial policymaking comes exclusively through adjudication—indeed it is in the very name of his concept (adversarial). But as discussed in detail in Part II, that is not the case with the supervisory power. It can and does operate outside of the confines of adjudication.
In this way, the supervisory power pushes court authority closer to what Kagan sees as an idealized notion of “bureaucratic legalism.” In this non-adjudicative context, many of the formalities associated with adjudication—rules of evidence, civil procedure, etc.—are not applicable. Instead, the process is substantially less formal, bringing judicial interventions closer to what Kagan sees as a normatively desirable government concept he terms “political and expert judgment.”
And yet, even when courts do rely on the power in the course of resolving a dispute, it can overcome many of what Kagan sees as the problems with making policy through adjudication. Specifically, the structure of adjudication and corresponding formality of procedural rules results in parties seeking broad policy outcomes under the guise of narrow, highly technical legal questions. Here, too, this Article’s account of the supervisory power can address some of these critiques of judicial policymaking. For example, high courts can and do rely on the authority to reframe or expand the questions presented, override otherwise rigid procedural rules, and other features that might narrow judicial inputs. Further, courts can convene commissions or task forces to operate as enhanced evidence-gatherers to supplement a lone appellate record and better inform their decision-making.
As discussed above, the supervisory power helps illuminate the institutional posture of state high courts and the ways that they challenge some of the background assumptions we typically assign to “courts.” Kagan’s critique further sharpens that point: generic concepts of what courts do do not map so easily on to state courts; and, with that, nor do some of the normative arguments against robust judicial policymaking roles in governance.
The supervisory power may also have normative consequences for a high court’s legitimacy. The legitimacy of judicial policymaking is the subject of rich literature, but scholars’ central theses generally focus on the concept of unaccountable institutions wielding purely discretionary power to issue sweeping, final rulings on consequential issues of social policy. In short, the legitimacy considerations turn on institutional aspects of courts and the nature of the power they wield.
As to structural factors, policymaking by courts is thought less legitimate because of how power is allocated between and among the branches. As courts wield their power in ways that look less and less like interpretation and adjudication, some scholars suggest we should be increasingly skeptical, since constitutional design is said to leave lawmaking to the other branches.
These are important considerations, but we should consider them in light of state constitutional structure. As Neil Komesar has shown, institutional evaluation does not proceed in a vacuum. In other words, a narrower view of state court power—that is, rejecting the account of supervisory power advanced in this Article as normatively undesirable—will likely result in enhancing legislative and gubernatorial power. Passively redistributing authority this way towards a generic equilibrium would be generally inconsistent with the deep skepticism of policymaking by legislatures and executives that animated modern constitutional development. It could disrupt the allocation of policymaking directed to the judiciary. In short, state constitutional structure perhaps invites more judicial policymaking than our generic conceptions of institutional roles allow.
Moreover, the accountability of courts (or lack thereof, as is often the case at the federal level) often provides a basis for evaluating the legitimacy of their power. As discussed above, and well established in the literature, state courts are more democratic, more accountable, and subject to more horizontal checks than their federal counterparts. For these reasons, normative critiques of judicial policymaking generally do not map well onto state courts, as these arguments are generally tailored to federal features (e.g., life tenure) or universal conceptions of courts.
Beyond these structural elements, normative evaluations of judicial policymaking often focus on the nature of the power itself and the content of the decisions it produces. On the latter, tired rhetoric, like “legislating from the bench” is well known. But it speaks to a more serious concern that courts are straying too far from devices we generally think of as providing some limitations on court power—text, interpretive canons, precedent, etc.
However, these evaluations assume a certain universe of forms of judicial power—largely a binary between constitutional and statutory interpretation. For example, consider the Warren Court’s procedural revolution. The U.S. Supreme Court crafted a host of procedural rules and frameworks that largely enhanced protections for criminal defendants based on its interpretation of the Fourth, Fifth, Sixth, and Eighth Amendments. The critiques of decisions like Miranda and others are that they lack a basis in precedent and their rules cannot reasonably be squared with the underlying text. These cases affected the Court’s legitimacy because for critics, traditional constitutional adjudication required more fidelity to things like text and case law.
The supervisory power, however, is a decidedly different formulation of judicial authority. As discussed in greater detail in Parts I and II, it is ideally situated for the kind of decisional contexts that require more latitude and discretion than might be available under ordinary judicial review. In this way, the power’s very flexibility is what could make it a more legitimate alternative to otherwise conventional methods of power. Indeed, as a distinctive source of authority, the supervisory power offers an additional tool that can serve as an alternative to attempting to craft doctrinal rules or tests based on ill-fitting constitutional text or precedent or engaging in the debates over “lockstepping.”
Further, we might consider judicial policymaking undesirable because the resulting decisions are sweeping and final and often concern consequential issues of social policy. As a general matter, “state judicial review does not have the same finality” as its federal analogue. But more specifically, the supervisory power is understood as even less final than ordinary judicial review. Whereas the latter might be thought of as “a big red stop sign” to the other branches, use of the supervisory power is perhaps better thought of as an invitation to “dance,” as some former chief justices have put it. Indeed, justices have said implicitly and explicitly that a virtue of the supervisory power is its provisional nature. As Chief Justice Ellen Peters put it, relying on “supervisory authority leaves more flexibility for further input from all the interested constituencies.” In these ways, use of the supervisory power does not have the same aggrandizing effects as other formulations of judicial power that are said to risk a court’s legitimacy.
In sum, our evaluation of the supervisory power should account for two considerations. First, our evaluation should consider its potential for courts to advance their prerogatives and conflict with other branches, as well as its potential to facilitate their cooperation and coordination. Second, while the power is broad, flexible, and highly discretionary, it is subject to boundaries and rooted in both text and institutional context of state constitutions. Further, under a closer examination, we see that traditional arguments against judicial policymaking do not readily track the nature of the supervisory power and structure of state constitutions so easily. As a result, our evaluations of the supervisory power should proceed at the retail rather than wholesale levels. In other words, that courts use the supervisory power along the lines sketched in this Article should not per se raise normative problems. Rather, we should take each application on its own terms and consider it in the context of a court’s zone of supervision.
Conclusion
The state supervisory power enables supreme courts to wield conventional forms of their power with fewer constraints and to assert it in seemingly unconventional ways. This Article offers a descriptive and theoretical account of this important aspect of state supreme court practice—as well as a qualified normative defense of it. It shows that the supervisory power is an essential feature of judicial independence and the broader role of state supreme courts as agents of governance. This feature of state high court practice has been an essential aspect of state constitutional structure, before state high courts’ current moment in the spotlight and will be after. To overlook this vital feature of state governance comes at our own peril, as state supreme courts are too important—and now more than ever—to overlook.
