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State supreme court nominations: quiet but important

Written by William C. Duncan

April 1, 2022

On March 29, Gov. Spencer Cox nominated Utah Appeals Court Judge Diana Hagen to serve as a justice on the Utah Supreme Court. Hagen has served in the court of appeals since 2017, and prior to that, she worked as a federal prosecutor. Hagen’s nomination must be confirmed by the Utah Senate before she can begin her service.

This confirmation will almost surely be less noticed and less contentious than that of Judge Ketanji Brown Jackson – or any other nominee to the U.S. Supreme Court – because we are used to the high-profile national decisions of that court.

That reality, however, should not obscure the importance of state supreme court justices. That importance derives from the unique role of state law in our federal system.

States existed prior to and, in a way, created the national Constitution. That document is a charter for the “United States.” The drafters of the Constitution were delegates sent by the states; the Constitution didn’t go into effect until after it was ratified in state conventions; and amendments to the Constitution must be ratified by a supermajority of the states.

The authority of the federal government is formally delegated to it by the people of the states, and the 10th Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In practice, even though the scope of federal power has definitely grown since the framing of the U.S. Constitution, the majority of legal issues Americans face still arise from state laws. Family laws, including those affecting matters like divorce and child welfare, criminal laws, and contract and business regulations are largely determined by laws made by state legislatures.

Disputes arising under these laws are decided in state courts, with the ultimate resolution occurring in the state supreme court.

Additionally, state constitutions often follow the federal constitution in outlining rights, although not always. The language of state constitutions can be more protective of constitutional rights than the U.S.  Constitution. For instance, Arizona’s constitution protects private property from being taken by the state based solely on the legislature’s assertion of a public need.

This is an extremely valuable arrangement. The federal Constitution creates a baseline for protecting individual rights. The states cannot act in ways that violate federal guarantees but are free to provide more protection than the U.S. Constitution provides.

With this backdrop, the importance of state judges comes into clear view. These judges apply and interpret state laws and constitutional protections that impact American citizens in a wide variety of issues and circumstances. Their decisions are likely to have a more intimate impact on citizens than most federal court rulings because they deal with core questions – like crime child custody, inheritance, adoption and foster care, and personal injury – that influence day-to-day life and well-being.

These judges can apply expansive state constitutional provisions to protect important rights when federal provisions are interpreted narrowly – for instance, to protect religious practice from undue burdens at the state level when the U.S. Supreme Court reads the First Amendment to require only that the state burden religious and secular conduct equally.

There is a risk, as with federal judges, that state judges can abuse their authority, usurping authority not clearly granted by the laws of the state constitution. So, as with federal judges, state legislators granted authority to review judicial nominees must be careful to ensure that nominated judges are committed to applying the law within appropriate bounds.

Judges willing to do that are a great benefit to their states and the nation, and most importantly, to the people whom their rulings will impact.

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