Judicial Laboratories

Abstract

This Article reexamines and reconceptualizes Justice Louis Brandeis’s dictum in New State Ice Co. v. Liebmann declaring States as laboratories of democracy. Justice Brandeis’s idea was predicated on a fundamental principle of federalism that States, as opposed to federal lawmakers, were free to experiment with social and economic policy innovations within their State laboratories without risk to the entire nation. Courts and scholars have almost universally recognized state legislatures, as opposed to state executives or state courts, as the traditional experimental state actors in the Brandeisian laboratories account. Most of the scholarly literature focuses its attention on how the laboratories metaphor describes the pursuit of traditional federalism values, such as choice, local interests, competition, diffusion of power, experimentation, and mobility. The Supreme Court’s jurisprudence, likewise, reinforces this state legislative-centric account of laboratories by crafting doctrines that preserve state autonomy and encourage state legislative experimentation unimpeded by federal actors. However, the scholarly literature embracing Brandeisian laboratories is incomplete.

Scholars have failed to properly address and appropriately recognize the role that state courts play as political, policy and democratic agents within their own sovereign “judicial laboratories of democracy.” Indeed, there are many structural features of state courts that mirror the other co-equal branches of state government, including electoral accountability, majoritarian influences over decisionmaking, policymaking powers through amendable state constitutions heavily influenced by direct democracy mechanisms, rulemaking powers and, at times, substituting judicial judgment over legislative processes to preserve the legitimacy of democratic processes. This Article’s conception of “judicial laboratories of democracy” challenges, rather than reinforces, the dominant notion that state legislatures are the sole laboratories for social, economic and political experimentation. Instead, state courts are, in and of themselves, co-equal democratic agents and active electoral participants who experiment with social, economic, and political policies within their own sovereign judicial laboratories.

Keywords: Constitutional Law U.S. Supreme Court, Judicial Federalism, State Constitutional Law, State Courts, Judicial Elections, Democracy, U..S. Supreme Court