We Need to Know More About State Supreme Court Cases

Nearly 50 years ago, former Supreme Court Justice William Brennan, Jr. observed that “state courts no less than federal are and ought to be the guardians of our liberties.”

He was right.

More than 98 percent of court cases filed in the United States are in state courts, and state courts play an outsized role in certain areas of the law, including the rights of criminal defendants and families. But state courts’ ability to guard our liberties depends in significant part on whether those courts adopt transparent processes that allow members of the public to learn about, monitor, and participate in important state court cases.

As federal courts have grown increasingly hostile to the protection of civil liberties, state supreme courts play an especially important role in protecting — and expanding — our rights. Each state has its own constitution, which can — and often does — go further than the U.S. Constitution to protect our rights. State Supreme Courts also have the final word on interpreting a state’s constitution — without threat of U.S. Supreme Court intervention.

Accordingly, state Supreme Court decisions — much like those of the U.S. Supreme Court — have an enormous impact on our lives. State supreme courts have, for example, relied on state law to recognize the right of same-sex couples to marry, hold the death penalty unconstitutional despite contrary federal law, protect access to reproductive health care post-Dobbs, and offer more robust protection to people who have or could be subject to unreasonable searches and seizures.

When community groups know early that a state high court is reviewing a case, they can prepare to file “friend-of-the-court” briefs educating justices about the implications of the case. We see dozens of these “friend-of-the-court" briefs in many U.S. Supreme Court cases, but they are far less common in state Supreme Court proceedings. Similarly, a state Supreme Court case docket tells the public what has happened in the case so far, and what to expect in terms of future filings. This kind of information helps citizen journalists and other media who are covering a legal issue to educate the public about the twists and turns of litigation in real time.

Importantly, in many states, Supreme Court justices are elected. Voters deserve to know not only a justice’s ultimate views on a case, but also whether the justice’s views fairly respond to the arguments from, for example, criminal defendants, employees who were fired for being Black or gay, or protestors who experienced retaliation for speaking their minds. A full assessment is only possible if you can read the legal briefs in a case.

Given the stakes, it is imperative that the public have meaningful access to pending cases in state high courts, yet access varies dramatically across the country. Some transparency is legally required by common law and the First Amendment, which gives the public a right to access certain court documents. But beyond this baseline, whether you can easily access briefs, dockets, and the issues under consideration in your state’s high court will depend on where you live.

The ACLU’s State Supreme Court Initiative reviewed all state high courts for four key practices, all of which are already in place at the U.S. Supreme Court. These practices include posting new cases online in a timely manner, providing timely information about legal issues presented by cases, making dockets accessible and free for the public, and making merits briefing accessible and free for the public.

Based on the ACLU’s review of the four key practices identified above, we have assigned tiers to each state and the District of Columbia. States in Tier 1 adhere to all four practices. States in Tier 5 follow none of the four practices. The results are disappointing: Most state supreme courts fall far short of providing meaningful public access to their pending cases.

As demonstrated in the map above, only six state Supreme Courts — those in Massachusetts, Michigan, Ohio, Texas (Criminal), Washington, and Wisconsin — qualify for Tier 1. In contrast, six state high courts fall into Tier 5, meaning they do not follow any of the identified transparency practices, and another 26 of them follow only one or two of those key practices. Many state supreme courts thus have a long way to go in providing information to the public commensurate with their important role in our nation’s legal system.

Fortunately, state Supreme Courts with room to improve need not recreate the wheel. Ready examples exist in state high courts around the country and in the U.S. Supreme Court, and these examples could, at minimum, serve as a model for state-specific modification.

Where possible, we therefore link to examples on state high court websites in the information provided with each state, with the hope that these examples help courts and advocates who appear before them identify promising practices that could be replicated in their states. Everyone benefits from transparency into our court system. It’s up to all of us to demand that our states’ highest courts set a high bar.