The Supervisory Power of State Supreme Courts

Abstract

State supreme courts are currently center stage, as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees the U.S. Supreme Court has diminished or eliminated from the federal constitution. While important, judicial review is but one power available to state high courts to protect rights and provide for the general welfare. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights. Supreme courts have relied on their supervisory power to reimagine the state’s criminal justice system, reduce homelessness, strengthen voting rights, expand protections for immigrants, and more. Despite its significance, this feature of state court practice has gone virtually unnoticed. As advocates increasingly look to state courts to address more and more of society’s complex and consequential issues, this distinctive aspect of their power is worth exploring.

This Article unpacks the supervisory power by mapping its sources, applications, and limits. The supervisory power has a basis in all fifty state constitutions and enables supreme courts to oversee their judiciary’s workload and operations. But as this Article shows, high courts are using this power beyond the humdrum of judicial administration, to enhance substantive rights and remedies, facilitate their law development and agenda-setting capabilities, and mediate interbranch frictions. The Article’s core claim is that these more expansive applications of the supervisory power are generally defensible based on the evolution of state judiciaries and supreme courts’ unique role in state government. The twentieth century saw a dramatic reimagining of state high courts from inferior instruments for the other branches to powerful, coordinate members of the state policymaking apparatus. In addition to overseeing the judiciary’s operations, the supervisory power thus plays an important role in a high court’s ability to contribute to state governance.

This account of the supervisory power is broad but not unlimited. The Article highlights the supervisory power's internal and external limits and sketches its metes and bounds to help frame its future applications. The Article then considers this judicial practice within larger debates of judicial policymaking and state constitutional structure. It engages with critiques of a more active judicial role and lawmaking powers. It explains that the key institutional assumptions behind such assessments do not map so easily onto the unique structure of state judiciaries. Stepping back, the Article encourages a broader but more nuanced view of state judicial power and the function of state high courts that wield it.

Keywords: state courts, state supreme courts, judicial administration, judicial federalism, judicial politics, state constitutions, state constitutional law, federal courts, procedure