State supreme courts and judicial review of regulation.

• Author: Graves, Scott
• Position: Perspectives: Federal Jurisprudence, State Autonomy

By expanding the doctrine of state sovereign immunity, the United States Supreme Court has made it increasingly difficult for litigants to bring suit against state institutions as a matter of federal law in federal court. (1) Nevertheless, the option to pursue analogous claims as a matter of state statutory or state constitutional law has been expanded as a result of the heralded renaissance in state constitutional law--the so-called new judicial federalism. (2) In this perspective, we will use the domain of regulatory policy to compare the seeming absence of analysis of state high court (3) decisions relative to that of federal court decisions.

Judicial review has been justified as--among other things--necessary to maintain a separation of powers, as a way to prevent arbitrariness in the law, and as a method to offset the pressure exerted by political interest groups. (4) The debate surrounding judicial involvement in regulatory policy has been accompanied by decades of widespread litigation and several controversial Supreme Court opinions aimed at limiting the judicial review of agencies. (5) To shed light on this debate in the context of state courts, we will compare judicial review by state supreme courts to that of federal courts.

While research has consistently found that regulatory agencies are remarkably successful litigants before the Supreme Court, (6) scholars have not generated nearly as much research at the state level. The last decade, however, has produced several path-breaking studies of the policymaking role of state supreme courts. (7) Such research is considered overdue, since state high courts are the courts of last resort in most cases and their collective caseloads easily dwarf that of the Supreme Court. (8) Furthermore, like the federal appellate courts, state supreme courts create important rules of legal procedure that guide the administration of law for the lower courts handling the bulk of litigation in the United States. (9)

There have been a few studies charting judicial activism in state courts. In the early 1980s, for example, state supreme courts overturned twenty-three percent of the economic regulation cases heard. (10) In contrast, while the issue of civil liberties comprised only eight percent of the cases that were appealed to them, the legislation was overturned in thirty-four percent of the cases. (11)

More recent research concludes that agenda decisions and merit votes of state supreme court justices are strategic depending on the salience of the issue and the independence afforded by the state judicial system. (12) The scholars that have focused on the institutional and political differences among state supreme courts as a way to explain differences in decisions note that courts in industrialized, politically competitive states handle a larger number of regulatory cases. (13) Some of the most sophisticated research of the last decade has focused on determining the effect that judicial selection mechanisms and the institutional arrangements has had on decisions. (14)

As recent years have brought about a new judicial federalism in regulatory policy, we should observe some difference in the activism of state supreme courts relative to that of the federal courts. According to the analysis presented here of a sample of federal circuit cases involving regulation statutes and administrative decisions from 1969 to 1996, it was determined that about thirty-seven percent of regulatory actions are reversed or limited upon review. (15) In the United States Supreme Court, the overall reversal rate over the last several decades has been...