Abstract
In this Article we reveal a dual dilemma, both material and
institutional, that the Supreme Court in its current composition
faces when reviewing liberal state court decisions based on the
state constitution. The Article further describes substantive and
procedural tactics that the Court adopts to address this dilemma,
and illustrates the arguments by analyzing a number of recent
Supreme Court decisions. The two dilemmas, the combination of
which serve as a "power multiplier, " of sorts, have arisen
following the last three appointments to the Supreme Court, which
resulted in a solid majority of conservative Justices nominated by
Republican presidents. One dilemma, material in nature, that the
Roberts Court faces, is between the federalist component of the
conservative legal worldview, that requires federal courts to defer
to state courts' rulings based on state constitutions, and its nonliberal component, based on conservative values. The second
dilemma, institutional in nature, stems from the Roberts Court's
legitimacy deficit among substantial sections of the American
public, mainly supporters of the Democratic Party, which has
increased as a result of the three recent appointments. The
legitimacy deficit may make it difficult for conservative Justices to
fully implement their judicial philosophy. We further argue that the
emerging ambivalence of the Roberts Court, which is a
consequence of the combination of these two dilemmas, is
manifested, in addition to general avoidance doctrines and the specific state ground doctrine, also in two types ofjudicial tactics,
substantive (such as seeking judicial compromise in order to reach
a broad common denominator among the Justices) and procedural
(such as encouraging other branches to carry out their obligations
until the dispute is reasonably resolved), that the Court adopts in
coping with liberal state court decisions based on the state
constitution. In the last Part of the Article we illustrate our
contentions by analyzing three recent Supreme Court decisions:
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
(2018), Espinoza v. Montana Department of Revenue (2020)
following Trinity Lutheran Church of Columbia, Inc. v. Comer
(2017), and Republican Party of Pennsylvania v. Boockvar (2020).
institutional, that the Supreme Court in its current composition
faces when reviewing liberal state court decisions based on the
state constitution. The Article further describes substantive and
procedural tactics that the Court adopts to address this dilemma,
and illustrates the arguments by analyzing a number of recent
Supreme Court decisions. The two dilemmas, the combination of
which serve as a "power multiplier, " of sorts, have arisen
following the last three appointments to the Supreme Court, which
resulted in a solid majority of conservative Justices nominated by
Republican presidents. One dilemma, material in nature, that the
Roberts Court faces, is between the federalist component of the
conservative legal worldview, that requires federal courts to defer
to state courts' rulings based on state constitutions, and its nonliberal component, based on conservative values. The second
dilemma, institutional in nature, stems from the Roberts Court's
legitimacy deficit among substantial sections of the American
public, mainly supporters of the Democratic Party, which has
increased as a result of the three recent appointments. The
legitimacy deficit may make it difficult for conservative Justices to
fully implement their judicial philosophy. We further argue that the
emerging ambivalence of the Roberts Court, which is a
consequence of the combination of these two dilemmas, is
manifested, in addition to general avoidance doctrines and the specific state ground doctrine, also in two types ofjudicial tactics,
substantive (such as seeking judicial compromise in order to reach
a broad common denominator among the Justices) and procedural
(such as encouraging other branches to carry out their obligations
until the dispute is reasonably resolved), that the Court adopts in
coping with liberal state court decisions based on the state
constitution. In the last Part of the Article we illustrate our
contentions by analyzing three recent Supreme Court decisions:
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
(2018), Espinoza v. Montana Department of Revenue (2020)
following Trinity Lutheran Church of Columbia, Inc. v. Comer
(2017), and Republican Party of Pennsylvania v. Boockvar (2020).
Original language | English |
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Pages (from-to) | 1-67 |
Number of pages | 67 |
Journal | Journal of Law and Policy |
Volume | 30 |
State | Published - 2021 |