A Conversation with Justice Clint Bolick of the Arizona Supreme Court

In February 2024, the Brennan Center for Justice, State Court Report, and the NYU Law Review hosted a symposium dedicated to state constitutional law. Several state supreme court justices who participated in the program sat down for brief interviews with State Court Report, which we are publishing as a series.

Justice Clint Bolick was appointed to the Arizona Supreme Court in 2016 and in 2018 was retained by the voters for a six-year term. In his interview, Bolick discussed the attorney shortage in Arizona, the state’s eminent domain clause, the state supreme court’s elimination of peremptory jury strikes, and the challenges for state courts when the U.S. Supreme Court returns issues like abortion to the states. 

The Arizona high court recently attracted national attention when it ruled that a Civil War-era law barring nearly all abortions was enforceable, a decision that Bolick joined. Bolick’s State Court Report interview took place before the court’s abortion ruling.

Gabriella Sanchez: What is something interesting about the Arizona Constitution that people might not know?

Justice Clint Bolick: Many of your readers will be familiar with the U.S. Supreme Court decision Kelo v. City of New London, which applied the Fifth Amendment’s Taking Clause to allow the city to bulldoze a working-class neighborhood to make way for a Pfizer plant. The Pfizer plant was never built, but the neighborhood was in fact bulldozed. Arizona’s constitution also has an eminent domain provision, but ours reads as if the framers of our constitution had transported themselves to modern times, witnessed what happened in Kelo, and went back to make sure that would never happen in Arizona. Our provision begins with language saying that private property shall never be taken for private use and ends by saying that a governmental entity’s assertion that the use is public is entitled to no deference. At the very same time as Kelo was being litigated, I was an attorney at the Institute for Justice litigating a similar case in Arizona under the Arizona Constitution, Bailey v. Mesa. While Kelo and her neighbors were losing in the U.S. Supreme Court, we won under the Arizona Constitution. That is a textbook example of how and why state constitutions are so important.

Sanchez: What are some of the greatest challenges facing state courts right now?

Bolick: The one that most immediately comes to mind is that we have a U.S. Supreme Court that seems inclined to return issues to state courts, most notably abortion. In terms of judicial federalism, that is not a bad problem. But it certainly means that we will be far busier and dealing with issues that we have not had to grapple with in the past. It’s definitely a challenge, but not necessarily a negative challenge.

Sanchez: What stands out as a memorable intellectual challenge you’ve worked through in your career?

Bolick: When I joined the court I had no familiarity with criminal law, which comprises about half of our docket. To my happy surprise, the criminal cases that come to us are typically either statutory interpretation or constitutional cases, and those are in my wheelhouse. I feel like I’ve been able to contribute to those issues, sometimes with outside-the-box thinking. One issue that has often come to us is peremptory jury strikes under Batson v. Kentucky. Justice Thurgood Marshall wrote a concurring opinion in Batson saying that limiting racially motivated jury strikes was a step forward, but that the issue would remain until they were eradicated entirely. So I suggested to my court that we should eradicate them entirely. It took a few years for that to happen, but the Arizona Supreme Court became the first court in the country to completely eliminate peremptory jury strikes. I could not be more proud that my court did that.

Sanchez: Are there other areas where you feel that Arizona’s high court is a pioneer?

Bolick: Absolutely. Through our rulemaking authority we deregulated the practice of law so that specialized legal paraprofessionals can represent clients in court. That has reduced the cost of representation, increased access to the courts, and created a whole new profession for people who may not want to become lawyers but want to be legal professionals. We also allowed non-lawyers to own law firms, bringing the legal business into the 21st century. Prior to that rule change only lawyers could own law firms and, as a result, the services that they could provide were very finite. Now, they can provide any combination of services that make sense to their clients. The results of all of those changes have been enormously positive, and other states are either adopting them more or seriously considering them.

Sanchez: Were those rules enacted as a response to an attorney shortage in Arizona?

Bolick: Absolutely. Just to give you an example: After we created the licensed legal paraprofessional profession, the state Department of Child Services approached us and said, “We are really short lawyers. We don’t pay them enough and we work them too hard. Could you approve a specialization for legal paraprofessionals?” My court was only too happy to do that to meet an unmet need. There are few lawyers who perform more important services than the child services lawyers. Having a shortage endangers children and slows down a process that has to move along very rapidly.

Gabriella Sanchez is a staff writer and editor at the Brennan Center for Justice.