State Courts Unbound

49 Pages Posted: 17 Apr 2007

See all articles by Frederic Bloom

Frederic Bloom

University of Colorado Law School


We don't think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine. And often it is the Court itself that has invited them to.

This article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state-court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. By unsettling constitutional substance and excusing state court errors, the Supreme Court has permitted - even encouraged - state courts to rethink critical portions of existing Court doctrine. It has written the story, that is, of "state courts unbound."

To bring this story into focus, this article examines how the unbinding process works, where we can see it, and why it warrants serious inspection. In the process, this article carefully recounts three illustrative chapters in the "state courts unbound" tale. One chapter grows out of Williams v. North Carolina, a long-ignored discussion of migratory divorce. A second chapter emerges in Lockyer v. Andrade, a more memorable study of California's "three strikes" law. And a third chapter appears in Roper v. Simmons, a controversial decision on the juvenile death penalty. All three of these chapters show how state courts can, and sometimes do, defy still-valid Supreme Court precedent - even in cases pending before the Court now. All three of these cases raise important questions about judicial motives, constitutional theory, and the balance of doctrinal power in our adjudicative system. And all three encourage us to rethink what may seem most familiar - and to read carefully the story of state courts unbound.

Keywords: Federal Courts, Procedure, Litigation, Supreme Court, Judicial Power

Suggested Citation

Bloom, Frederic, State Courts Unbound. Cornell Law Review, Vol. 93, Available at SSRN:

Frederic Bloom (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

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