The U.S. Supreme Court's Declining State Case Docket
So far, only 2 out of 28 cases on the high court’s docket arise from state courts, a surprisingly low number given the regularity with which state courts hear cases implicating federal rights.
A new U.S. Supreme Court term starts next week. We’ll see major cases related to gun regulations, gender-affirming health care for young people, and much more. But one category of cases that’s likely to be underrepresented on the Court’s docket is appeals from state courts.
As Georgetown professor Steve Vladeck has observed, the number of appeals that the Supreme Court has taken from state courts in recent years has been declining. Looking at the cases the Court agreed to hear as of Tuesday, only 2 out of 28 cases arise from state courts. This is surprising — state courts regularly hear cases implicating federal constitutional rights and federal statutes that could lend themselves to Supreme Court review. For example, state courts hear twice as many Second Amendment claims as the federal courts.
At least part of the story about the lack of appeals from state courts appears to be a sharp decline in the Court taking up criminal procedure cases in recent years, for which state courts are a big pipeline. This trend has baffled many criminal procedure scholars and practitioners, who point to a growing list of splits among both state and lower federal courts on important legal questions.
The Supreme Court is also taking up far fewer cases overall, leaving state and lower federal courts as the de facto final word on a host of federal legal questions. According to Vladeck, for the last five years, the Court has issued fewer than 60 signed opinions per year in argued cases — a floor that the Court hasn’t otherwise gone below, with one exception, since 1864. Until about 10 years ago, the number of signed opinions in a term was routinely in the mid-70s, and it was even higher before that. (In 1989, for example, there were 129.)
That said, when the Supreme Court has taken up state court cases, they’ve often been big ones — and often related to elections. Earlier this year in Trump v. Anderson, the Court overturned a ruling by the Colorado Supreme Court barring Donald Trump from the Republican primary ballot under the 14th Amendment’s insurrection clause, ruling that only Congress has the power to enforce this provision with respect to federal offices. In 2023, the Court rejected a radical claim in Moore v. Harper, a case arising out of the North Carolina Supreme Court, that state legislatures were the only state bodies that could regulate federal elections. And of course, the most famous election case of all, Bush v. Gore, came out of the Florida Supreme Court.
Much of the election activity this year might end up on the Court’s “shadow docket,” where it hears emergency motions. In just the past two weeks, the Court rejected two election-related motions, both coming from state courts: a request by erstwhile presidential candidate Robert F. Kennedy Jr. to be reinstated to New York’s ballot after he was removed for putting forward a false address, and a request by the Green Party to be placed on the Nevada ballot after the state high court ruled it ineligible.
One more point: One of the questions I get asked the most when I talk about state courts is what the rules are for when the U.S. Supreme Court can intervene after state courts issue major decisions. There’s an easy version of the answer to this question — state supreme courts are the final word on state law, while the Supreme Court can step in when federal law comes into play — but that obscures a lot of legal nuance. State Court Report advisor Sarah Kessler has a fantastic new explainer that lays out the framework.
Litigators take note: From the cases I read, a lot of state courts don’t clearly disentangle state and federal claims, creating a path to Supreme Court review even when that’s not intended. If you’re looking for state courts to develop an independent body of state law, many of them need a clearer roadmap for how to do so.
Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.
Suggested Citation: Alicia Bannon, The U.S. Supreme Court’s Declining State Case Docket, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 03, 2024), https://statecourtreport.org/our-work/analysis-opinion/us-supreme-courts-declining-state-case-docket.
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