The Supervisory Power of State Supreme Courts, Explained

Recent federal immigration enforcement actions have focused on state and local courthouses, chilling participation from litigants and witnesses alike and pressuring judiciary leaders to find ways to insulate proceedings from intrusion. Court systems are considering a number of options, such as moving some proceedings online, limiting public access to docket information, requiring the use of judicial warrants, and banning face coverings in courthouses.

State high courts possess a broad source of power that enables them to make these and countless other vital decisions concerning how their court systems operate. This power, called the supervisory power, is the primary source of administrative authority for state high courts, authorizing them to make operational decisions that range from the seemingly mundane — like determining foul weather policies and implementing new computer systems — to the profound. Indeed, as the immigration enforcement example illustrates, this power can have substantial implications for civil rights and liberties.

In a recent law review article, I unpack this important but often overlooked aspect of state court practice, considering its origins, applications, boundaries, and implications for how we think about state high courts.

Origins

The supervisory power is a freestanding, flexible, discretionary source of authority based in all 50 state charters. While constitutional text and structure help identify the power, considering the institutional development of state courts in general and high courts in particular provides a fulsome background for how courts wield the power today.

State courts transformed during the 20th century from a loose collection of courts that were largely subordinate to the executive and legislative branches to centralized, coequal branches of government, with a single court — often a supreme court — as the head. The reform movement was led by leading court theorists of the time, including Roscoe Pound and Arthur Vanderbilt, and various interest groups, such as the American Judicature Society and the National Municipal League. By the latter half of the 20th century, most states had rewritten their constitutions to reimagine the structure of their judiciary as an independent, politically equal branch that possessed sufficient power to oversee its operations and implement its prerogatives.

Structural changes included many features we might take for granted today but were innovations at the time: discretionary appellate jurisdiction, increased political independence via control over budgeting and personnel, and other features that gave high courts more oversight over the courts. At the same time, state political communities were increasingly skeptical of their legislatures, driven by decades of patronage, economic collapse, fraud, and deep partisanship.

In response, states began deliberately shifting policymaking power away from presumptively corrupt legislatures to increasingly independent judiciaries. They did so through changes such as granting courts plenary rulemaking power and the authority to issue advisory opinions. At a more abstract level, views of what courts do and how they should wield their power changed as well. Over the 19th and 20th centuries, the perception of state high courts evolved from that of private dispute resolvers to organs of governance that necessarily participate in the policymaking process.

In sum, by the second half of the 20th century, state judiciaries were elevated to meaningful branches of state government, expanded to oversee a host of policy areas beyond simply adjudication, like pretrial services, family and juvenile matters, and more. Views of the judicial function, namely that of high courts, also shifted from mere case resolution to state governance. To operate the new, complex, centralized structure, implement these additional responsibilities, and effectuate the changed perceptions, courts needed more power. Reformers responded by vesting high courts with the supervisory power.

Applications

What do high courts do with their supervisory power? Most applications might understandably be overlooked as routine court administration — crafting a mask policy for court personnel during a pandemic, determining the number of inches of snow required for courthouse closures, mandating that judiciary personnel take antibias trainings, and so on. But as I show in my article, courts wield the same power for more interesting and, perhaps, provocative uses. In recent years, high courts across the country have used their supervisory power to expand due process rights of criminal defendants, enhance protections for tenants against aggressive landlords, and strengthen protections of voting rights for all, among many other applications.

Perhaps most interestingly, the supervisory power plays an important role in what state supreme courts can do outside of adjudication. We often think of courts exclusively as adjudicators — their power is reactive, as it must be initiated by a party filing a complaint, motion, and so on. This, of course, is the logic behind federal judicial power. For better or worse, Article III of the U.S. Constitution limits such power to the confines of a lawsuit: a case or controversy. But state judicial power is not so limited. State courts can and do act affirmatively, regardless of whether a party or case is before them, and the supervisory power is a key instrument for such nonadjudicative acts.

For example, in 2020, several high courts issued moratoriums on eviction proceedings, preventing landlords from evicting tenants during a historic pandemic. Around the same time, courts used their supervisory power to dismiss hundreds of thousands of municipal court cases concerning criminal fines and fees as part of broader policy decisions to address race and class disparities in their respective court systems. And during the first Trump administration, a handful of supreme courts issued orders limiting immigration enforcement in their courthouses. In each of these examples, high courts did not wait for a litigant to request relief, but instead acted based on their own views of what the public interest required and justice demanded — and the supervisory power provided the tools to do so.

However, the supervisory power can also play a part in courts’ adjudicative decisions. Perhaps the most common use of the power is crafting ad hoc procedural rules that are informed by constitutional values — due process, speedy trial guarantees, self-incrimination protections — but offer protections that exceed the constitutional floor. For instance, more than a dozen state high courts have held that certain confessions are admissible in criminal trials only if they are recorded, not as a matter of due process or another constitutional provision, but through the court’s supervisory power, informed by the justices’ conception of justice. For example, the Minnesota Supreme Court explained recordation is “a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Other courts adopting such a rule recognized it “regulate[s] the flow of evidence in state courts, including the nature of the evidence developed and presented by law enforcement,” and is necessary “to insure the fair administration of justice.”

Similarly, courts have relied on the supervisory power to extend their remedial authority, providing relief that might otherwise be unavailable. For example, in overturning more than 20,000 criminal convictions in a single order, Massachusetts’s high court premised the availability of its sweeping form of relief not on a particular constitutional right but on its supervisory authority. Following revelations of a decades-long tampering scandal in a state drug lab, the court concluded the effects were so “widespread” that justice “require[d]” the “court exercise its superintendence authority and vacate and dismiss all criminal convictions tainted by governmental wrongdoing.”

The supervisory power plays an important role in high courts’ law development function as well. The power is not subject to the same rules governing justiciability, stare decisis, issue preservation, and finality that limit the reach of conventional forms of judicial review. Further, the content of any one rule crafted by the supervisory power is purely discretionary; its north star is ensuring justice is done in the court system, and because injustice can take many forms, the supervisory power is correspondingly flexible and open-ended. In contrast, even elastic forms of constitutional jurisprudence — substantive and procedural due process, “evolving standards of decency,” and so on — still impose doctrinal and precedential limits as to what is possible under the particular rights provision. The supervisory power does not know such obstacles. In these ways, the supervisory power facilitates the important lawmaking role that is central to the role of apex courts.

Along these lines, high courts sometimes use their supervisory power as a doctrinal sandbox in which to experiment with rules or standards before adopting them as a matter of constitutional law or as placeholders for legislative action. For example, Alaska’s high court relied on its supervisory power in a series of cases to sketch a variety of procedures to protect witnesses who are compelled to testify, and it ultimately adopted those procedures as constitutional rules once they’d proven satisfactory.

While the supervisory power is broad, flexible, and highly discretionary, it is not unlimited. Perhaps the most potent limits on a high court’s supervisory power come from state constitutions. Over time and across states, the scope of an individual court’s supervisory authority has expanded and contracted as its composition has changed due to judicial elections, recalls, term limits, and mandatory retirements. Moreover, other branches have at times responded to courts’ uses of the power with threats of court curbing. Similarly, individual exercises of the supervisory power face the threat of constitutional override by the people or their representatives.

Implications

While state high courts possess a subtle but significant source of power that lacks a federal counterpart, it is subject to meaningful limits that are similarly unknown to federal courts. Indeed, some of the most trenchant criticisms of “judicial policymaking” are premised on institutional assumptions — life tenure, countermajoritarian insulation, the finality of constitutional decisions — that are generally inapplicable at the state level. Of course, this is not to say every application of supervisory power should be celebrated; we should evaluate and critique uses individually. But the availability of this power, and its use as an alternative to traditional forms of judicial review, undermines many of the conventional legitimacy concerns associated with broad uses of judicial power by state high courts.

Unlike the federal system, where we’re told courts wield judicial review in a binary fashion — statutes either are or are not constitutional — the supervisory power shows that state judicial authority is richer and more textured. And while much of the supervisory power is focused on day-to-day court operations, it can be and is used for much more than that. As more of our attention shifts to state judiciaries, the supervisory power might serve as a reminder to go beyond simply asking how to get more rights out of state constitutions and instead consider how the courts work and where they sit in a state’s governance structure.

Adam Sopko is an associate professor at the University of Colorado Law School.

Suggested Citation: Adam Sopko, The Supervisory Power of State Supreme Courts, Explained, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 27, 2026), https://statecourtreport.org/our-work/analysis-opinion/supervisory-power-state-supreme-courts-explained-0