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.