To understand the relationship and role of the various court systems in the United States, it is necessary to understand the relationship between state and federal governments. Early in the nation’s history, there existed no truly national government and virtually all litigation that occurred took place in state courts. The Articles of Confederation were largely silent on the existence of a federal court system and limited “federal” to that which took place when Congress was called upon to resolve disputes between the states in their sovereign capacity. Under the Articles of Confederation, states possessed the bulk of both local and national power, including judicial power, notwithstanding efforts by Congress to create a more secure union.
With the adoption of the federal Constitution, the United States emerged from a confederation of sovereign states into a system that possessed two levels of sovereign governing authority, the states and the national government. The creation of a federal judiciary by Article III of the Constitution was controversial, as evidenced by the debates as to whether there even ought to be a federal court system below the Supreme Court. John Rutledge, former Governor of South Carolina, argued during the Constitutional Convention that “the State Tribunals might and ought to be left in all cases to decide in the first instance” because the establishment of lower federal courts would be “an unnecessary encroachment on the jurisdiction of the states.” In the end, the creation of lower federal courts and the extent of their authority were left to Congress. States’ rights activists opposed giving the new courts too much authority, while supporters argued that only a strong federal court system could overcome the weaknesses that had been so apparent during the Confederation period. The issue was largely settled by the adoption of the Judiciary Act of 1789, which created the foundation of the modern federal court system.
The creation of two governing authorities within a federal system led to the creation of two separate legal systems. Because the state and federal legal systems typically remain independent of each other, for much of the nation’s history, state and federal courts have operated independently. Statutes adopted by a state legislature and decisions by state courts are not subject to federal review unless the U.S. Constitution, federal statutes, or a strong federal interest is implicated. Likewise, on purely state issues being litigated in federal court, for example the meaning of a state constitutional provision or state law, federal courts defer to and apply state court decisions interpreting state law.
Given the vast reach of the states’ so-called police powers, which is the power of government to enact laws for the health, safety, and well-being of its citizens, over 95 percent of the nation’s litigation continues to occur in state courts. For example, in 2001, some 93 million cases were filed in state courts compared to approximately 1.7 million cases filed in federal courts. State courts continue to be the venue in which most of the nation’s criminal and civil litigation occurs.
Although state and federal courts generally operate independently of each other, the role of state courts in the federal design of the government is uniquely defined by the Supremacy Clause of the federal Constitution. That clause provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” When Congress legislates under its delegated powers, conflicting state law and policy must yield to congressional intent. Although the preemptive effect of federal legislation under the Supremacy Clause is most often seen in the area of regulating interstate commerce, its effect is very broad and reaches virtually all areas of litigation in which the federal government has played some role, directly or indirectly.
As a result of the Supremacy Clause and congressional preemption, state courts have broad obligations in applying both national and state policies expressed in the law. Whereas the federal courts are generally confined to applying federal law to cases that present “federal questions,” the obligation of state courts is potentially more confusing because their reach is much wider. In practical terms, the Supremacy Clause means that state judges must not only abide by state constitutional and statutory provisions, but must also enforce applicable federal law. Equally important, state judges must, when sorting out conflicts between federal law and state law, apply the applicable federal law to the extent of the conflict. In effect, state judges are at times confronted with the difficult task of declaring the laws of their own state unconstitutional or ignoring those laws in favor of some federal requirement.
Although there are common organizational patterns, the federal system has meant each state is generally free to organize, and reorganize, its judiciary as it sees fit. All states have a final court of appeals, called a supreme court in all but one state. A majority of states have created intermediary appellate courts in recent years to relieve the appellate workload of the supreme court. In these states, state supreme courts generally hear only those cases presenting critical questions of law or public policy, or those relatively few cases that the legislature or state constitution mandate be heard by the state’s supreme court. Consequently, state supreme courts that have some level of discretion over which cases they hear generally review very few of the cases appealed from the trial courts. While there is great variance between the laws of the states governing the jurisdiction of appellate courts, there are great similarities in the structure and role of appellate courts.
By contrast, there are wide variations among the states in the structure of trial courts. All states have a court of general jurisdiction responsible for the most serious civil, criminal, and family cases. Most states have created specialized courts with jurisdiction over specific types of cases or geographic entities (e.g., juvenile, municipal ordinances, traffic violations, and equity findings). Many of these structural differences are the results of the historical development of courts. For example, many states in the South and Midwest developed court systems largely along models of local government with strong county orientation as to venue and jurisdiction. Other states, primarily in the Mid-Atlantic, New England, and the West, have developed trial court systems more oriented to a centralized state model, particularly with regard to funding and administrative control.
The selection process for judges also varies widely by state and includes such disparate selection methods as election (both partisan and nonpartisan), appointment (by the governor or state legislature), and retention. It should be noted that historically and with rare exception, most state judges were elected throughout all levels of the judiciary. Beginning in the 1940’s, several states began changing judicial selection practices, at least with regard to state supreme court candidates and candidates for intermediate appellate courts. The most noted illustration of change is the so-called Missouri Plan that creates a qualification commission with responsibility for screening applicants and providing a list of qualified candidates to the governor for appointment. Judges appointed under such plans stand for retention election, that is, the voters are asked whether a judge on the ballot should remain in office without reference to an opposing candidate. If the voters reject retention (in effect, vote the judges from office), the processes of application, screening, and submission to the governor would start again for the now-vacant position.
The issue of judicial selection has become an intense issue in recent years with several states calling for reform of the process to ensure public trust and confidence in the judiciary. The costs associated with running judicial campaigns, particularly for statewide judicial office, have raised troubling questions about judicial integrity given the vast sums of money that candidates must raise. The matter has been complicated by recent federal court decisions that have essentially removed long-held ethical restrictions that limited what judges and candidates for judicial office could say during a campaign. As a result, the American Bar Association, along with other groups, has called for a careful examination of judicial selections processes to ensure public trust and confidence in the impartiality of the court system.
The independence of the third branch of government in states also differs widely among states. As a general proposition, separation of powers is not as clear or absolute a doctrine at the state level as it is at the federal, although even this statement reflects wide variations. For example, beginning in the 1960’s, several states added so-called modern court provisions to the judicial article of their constitutions. These provisions vested the state supreme court with extensive superintending authority over the operations of all courts in the state and substantial rule-making authority with respect to practice and procedure in state courts. Still other state judiciaries remain subject to broad legislative control not only with respect to practice and procedure, but also with respect to operational control of the courts. State judicial leaders must be more proactive to ensure the continued independence of the courts from political influence by the other two branches, particularly in those states where politics play an apparent role in the selection of judges.
The role of state courts has changed over the second half of the twentieth century. As the federal and state governments have become more active providers of social services, courts have been used as vehicles for implementing legislative policies. For example, child support orders are issued by the court as part of the dissolution of a marriage, treatment programs are mandated as a part of a sentence for drug abuse, and teenagers are placed in youth shelters operated by the court. This changing role has had two important consequences for our federal system. First, state courts have developed complex administrative structures, independent of the state executive branch of government, to support the adjudicatory role of judges. And, second, state courts are part of the interdependencies of state and federal executive agencies administering major public policy areas such as child support enforcement, criminal justice information systems, and school aid programs. Federal funding and federal rules and regulations put further pressure on the independence of the state judicial branch as state executive agencies, acting as federal surrogates, demand that court officials comply with administrative requirements.
The effect of these changes has been to create an increasingly complex interdependency between federal public policy and state courts that is only partially captured by the formal jurisdictional division between the two levels of government or the relationship between judicial systems. State courts continue to be the workhorses of the United States’ adjudicatory process, whose independence and integrity are challenged by the ongoing changes in the federal system.
Bruce Fein and Burt Neuborne, “Why Should We Care about Independent and Accountable Judges,” Judicature 48, no. 2 (September–October 2000): 58–63; Donald L. Horowitz, The Courts and Social Policy (Washington, DC: Brookings Institution, 1977); Irving R. Kaufman, “The Essence of Judicial Independence,” Columbia Law Review 80 (1980): 671; Burkeley Riggs and Tamera D. Westerberg, “Judicial Independence: An Historical Perspective,” Denver Law Review 74 (1997): 337; Felix Stumpf, Inherent Powers of the Courts: Sword and Shield of the Judiciary (Reno, NV: National Judicial College, 1994); and G. A. Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 1998).