Misleading corporate claims about greenhouse gas emissions pose a high risk of consumer deception, as there is currently no uniform federal standard governing how companies must measure or disclose those emissions. Without a national regulatory scheme, firms can selectively report, use inconsistent methodologies, or market vague “carbon neutral” claims, making it difficult for consumers to assess accuracy or compare companies’ representations. In 2023, California introduced legislation requiring companies doing business in the state to disclose their greenhouse gas emissions in an effort to bring transparency to this area. But such state-level mandates face a constitutional obstacle: the Dormant Commerce Clause, which limits states from enacting laws that unduly burden interstate commerce. This Note argues that to best survive the Dormant Commerce Clause’s Pike balancing test—which assesses whether a state law’s burden on interstate commerce is clearly excessive compared to its local benefits— future states should frame disclosure laws as efforts to protect residents from fraud and deception, rather than focusing on their immediately apparent interest in protecting residents from climate harm. The Supreme Court has not yet endorsed a state climate change interest in the Pike balancing context, and federal courts are unlikely to do so anytime soon.

On the one hand, we are in a moment when interest in state courts and state constitutional law is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasing calls for state supreme courts to rely on state constitutions to expand rights. On the other hand, we are in a moment when interest in reducing the power of the courts is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasingly calls for reining in judicial power.

This Essay is not an endorsement of either or both of these views. Instead, the goal of this Essay is to interrogate whether these prominent views can hang together. It is possible that some special features of state courts or state law might respond to concerns with judicial supremacy that do not apply to the federal courts. Working out that possibility is going to require more descriptive and normative work from scholars. This Essay lays out a framework for that work. After summarizing the turns to praising state courts and to criticizing judicial power, this Essay presents a research agenda that focuses on state constitutions, state structure, state judicial selection, and federalism. In so doing, this Essay also, though less directly, seeks to make sure that constitutional structure is also part of the conversation about state constitutional rights.

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay considers the implications of these developments for state constitutional law. The Essay’s descriptive findings challenge a central theory of state constitutionalism that rests the validity of state courts interpreting their constitutions independent of analogous federal doctrine on the idea that state and federal courts are engaged in a collaborative “dialogue” over shared constitutional values. The Essay’s docket analysis and close reading of relevant cases undermine the theory’s plausibility. The Justices are both reviewing more cases that turn on state law than they have in recent decades and are redefining the central limit on their power to do so—AISG—in order to countermand, override, and even belittle the development of state law. At the same time, more and more state judges are recognizing that the Court’s text, history, and tradition approach to constitutional law is a foreign dialect and thus largely unrecognizable. This Essay urges us to consider alternatives to the dialogic frame and offers one possibility, grounded in state constitutions’ first principles, to anchor the legitimacy of state constitutionalism.