State Supreme Court Opinions as Law Development

I. KEY ROLES OF APPELLATE COURTS The controversy over Justice Sotomayor's statement that the "Court of Appeals is where policy is made" illustrates that there is still confusion over the role of appellate courts. (1) That confusion is exacerbated by the recent movement toward measuring judicial productivity by opinion production, as noted below. Appellate courts have two primary functions: "error correction" to ensure that law is interpreted correctly and consistently and "law making" to provide a means for the development of law through their decisions and explanations of decisions. (2) In states with only one appellate court, that one court must perform both functions. In states with two levels of appellate courts, the intermediate appellate court is often assigned the error-correcting role and the court of last resort, most often called the supreme court, (3) is primarily concerned with the development and declaration of law. Indeed, a primary rationale for the creation of intermediate appellate courts is to dispose of the bulk of appeals so that supreme courts can focus on cases with significant policy implications or cases of high salience to the public. More than thirty years ago, a group of scholars noted that they had observed an emerging societal consensus that state supreme courts should not be passive, reactive bodies, which simply applied "the law" to correct "errors" or miscarriages of justice in individual cases, but that these courts should be policy-makers and, at least in some cases, legal innovators. (4) As courts of last resort, state supreme courts have the final authority on issues most basic to people's lives. In the words of Professor Rosenblum: [I]n the complex system of government we adopted, most questions of private law were left to the states. The national government had almost no part in establishing or developing the law of property, contracts, wills, personal injury or damages.... [W]ithin the states it was often the courts rather than the legislatures that actually formulated such law. (5) Moreover, state courts of last resort "interpret not only state laws but also federal laws," and, in the process, they "contribute significantly to public policy." (6) Justice Brennan acknowledged as much when he wrote that "state courts have responded with marvelous enthusiasm to many not-so-subtle invitations to fill the constitutional gaps left by the decisions of the Supreme Court." (7) Professors Stumpf and Culver argue that the trend continued as the Burger and Rehnquist courts became more deferential to state courts, with the Supreme Court "literally inviting an increased activism in state judicial policy-making, and in many instances state supreme courts have displayed their willingness, if not at times their eagerness, to move into the vacuum." (8) If this trend continues, the state supreme courts will increasingly "'define the quality of life' in American states and communities." (9) It is interesting to note that a very recent poll showed that seventy-one percent of Americans say their state supreme court should keep its ability to decide controversial issues, and sixty-eight percent believe that the courts either have the appropriate amount of power or should be awarded even greater power. (10) Only twenty-four percent thought the state legislature and the governor should have more power over the courts.) (11) Another indication of state supreme courts' increased role in policy making is the renewed interest in election of judges and justices. According to Roger Warren, both a former judge and a former president of the National Center for State Courts, [s]tate judicial elections have become increasingly like elections for political office: expensive, contentious, partisan, political, and dominated by special interests.... Electing state court judges attuned to a particular special interest or ideology, and defeating those not so attuned, is increasingly viewed by political parties and special interests as politics--and business--as usual. …