Friction by Design: The Necessary Contest of State Judicial Power and Legislative Policymaking

Michael Buenger

Abstract

Courts in the United States have always played an important policymaking role through the exercise of judicial review. Much of our understanding of judicial power and judicial review is based on its exercise in the federal courts. Little attention has been paid to the intersection of judicial power and legislative policymaking at the state level. The tendency to examine judicial power through the lens of the federal bench miscasts the history of the American judiciary and fails to account for the unique role state courts perform as components of quasi-independent states. Even federal judicial review is rooted in state judicial traditions. Where the federal courts are largely creatures of statute exercising judicial powers under the constraints of delegated powers, specific constitutional limitations and the legislative authority of Congress, many state courts enjoy a constitutional level of jurisdictional and structural independence unparallel in the federal system. The state courts reflect tremendous diversity in their independence, their powers, and their interaction with legislative and executive policymaking powers. The power of state courts is revealed not only in specific grants of authority but more importantly in the specific limitations each state’s constitution places on the policymaking powers of the legislature.