an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of my current projects involves looking at all Supreme Court cases reviewing decisions of the state courts. I reported a year ago that compared to earlier periods in the history of the Supreme Court, the Roberts Court was reviewing relatively few decisions from the state courts but reversing a very high proportion of them.
The 2010 Term continued that trend.
During the 2010 Term, the Roberts Court reviewed nine cases from the state courts. In all nine cases, the Court reversed the decision of the state court. Four of the nine cases from the state courts involved issues of criminal procedure: Michigan v. Bryant (confrontation clause); Kentucky v. King (exigent circumstances and the Fourth Amendment); Bullcoming v. New Mexico (confrontation clause); and J.D.B. v. North Carolina (Miranda). In all of these cases except Bullcoming, the Supreme Court’s decision favored the government.
Three additional cases rounded out the 2010 Term’s docket of cases from the state courts: In Turner v. Rogers, the Court held that incarceration for civil contempt of a petitioner who lacked the assistance of counsel violated due process. In Williamson v. Mazda Motor the Court held that federal law did not preempt state tort claims involving safety belts. In Nevada Commission on Ethics v. Carrigan, the Court held that a state law prohibiting a legislator with a conflict of interest from both voting on a proposal and from advocating its passage or failure was not overbroad.
Three of the nine cases from the state courts produced 5-4 decisions: Bullcoming, J.D.B., and Turner. In J.D.B. and Turner, Justice Kennedy joined the Court’s four liberal justices to produce a majority. The majority in Bullcoming comprised Justices Ginsburg, Sotomayor, Kagan, Scalia, and Thomas.
State courts have very little chance of being reviewed by the Roberts Court: last term, the courts of 42 states avoided review and North Carolina was the only state with two decisions reviewed by the high court. However, if the Supreme Court does grant review, it is very likely to reverse the state court’s decision.