Under what conditions, if any, are state courts justified in making policy decisions that affect the political process? We live in increasingly politically polarized times. Congress and the President are unable work together. We now see a similar pattern at the state level. Paralleling what has happened at the federal level, state judiciaries are compelled to resolve disputes, often involving clashes between the other branches of government, or addressing other salient and controversial policy issues. Perhaps such a tendency confirms Alexis de Tocqueville’s observation, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Consequently, the language of everyday party-political controversy has to be borrowed from legal phraseology and conceptions.”
At the federal level, the U.S. Supreme Court has famously waded into the “political thicket” over time—even addressing contentious issues such as abortion, marriage equality, immigration, the constitutionality of the Affordable Care Act, presidential appointment power, and the division of powers between the federal government and states.
States, too, have stepped in to resolve similar issues. For example, nationally, state courts led the way when it came to legalization of same-sex marriage, addressing issues of voter fraud and identification, or partisan gerrymandering—even where the Supreme Court demurred or got involved later. Over time, scholars have questioned both the legitimacy of the federal courts and their capacity to intervene in these types of policy or political disputes.
In Minnesota, the courts have been asked to address contentious issues, as the governor and other members of the executive branch have clashed with the legislature. There have been judicial requests to fund state government functions when no budget has been reached, to define the scope of the governor’s unallotment, and line-item veto powers. There have also been demands to address separation of powers issues demarcating the power of the legislature versus the state auditor, questions invoking the single-subject rule, whether the lieutenant governor can simultaneously serve in the Minnesota Senate, or even regarding the adequacy of funding and segregation in schools. Each of these cases endeavor to bring the judicial branch into the middle of political-legal controversies. In some situations, courts have waded into the political thicket; in others they have not, employing a variety of “passive virtues,” such as standing or jurisdiction, to avoid the question.
Nevertheless, lurking behind these legal controversies is a democratic theory question: Should state courts make policy, or otherwise render decisions, that appear as though they should be entrusted to other branches of state government?
In effect, how legitimate is it for state courts to resolve these types of controversies? Examining this issue will be the subject of this article, demonstrating that problems potentially limiting federal courts do not apply to state courts. As a result, the latter may have more legitimacy and perhaps capacity to address political or policy issues than the former. However, state judiciaries face unique problems that the federal courts do not, specifically when they involve elected judges.
In order to examine the legitimacy of state judicial policy making, this article will do several things. First, it will provide an overview of American democratic-constitutional theory as it applies at the federal level, seeking to clarify the problem that courts at this level face when they issue opinions that might be characterized as policy making. Specifically, it addresses both a normative issue—what has been called the counter-majoritarian problem—and a capacity issue—whether the federal courts have the ability or skills to make policy. After defining the lines of debate at the federal level, this article turns to state courts and constitutional theory, arguing that they are in a different situation than federal courts, both by virtue of the nature of their own constitutions and, in the case of thirty-eight states, having an elected judiciary. Elected judiciaries, however, generate a different problem—the majoritarian dilemma—a source of both legitimacy and illegitimacy.
The majoritarian problem is a vexing and perhaps unsolvable problem for some state courts, but that problem does not take away from a democratic theory of state courts to intervene in political disputes in ways that depart from the federal courts. This article concludes that there needs to be either a general or state-specific theory of judicial review that describes when it is appropriate for state courts to intervene in political disputes.