Legal/Law/Criminal Justice and Reform

‘A Tactical Decision’: Left-Wing Activists See State Courts As Avenues To Advance Their Agendas

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• Left-leaning legal groups quickly turned their attention to state courts after the Supreme Court overturned Roe v. Wade last year, sending the power to make abortion laws back to the states.
• The American Civil Liberties Union (ACLU) announced in May a new State Supreme Court Initiative, which aims to advance abortion, LGBT issues and more through litigation at the state level because they claim the Supreme Court is “increasingly not an option to protect, let alone expand, civil liberties and civil rights.”
• “It’s a tactical decision, and that’s what lawyers do,” Thomas Jipping, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation.

State courts are quickly becoming a heated battleground for abortion and LGBT issues, with left-leaning groups announcing legal strategies focused on the state level and launching efforts to educate the public on their role in electing local judges.

Legal groups quickly turned their attention to state courts after the Supreme Court overturned Roe v. Wade last year, sending the power to make abortion laws back to the states. Noting that the Supreme Court is “increasingly not an option to protect, let alone expand, civil liberties and civil rights,” the American Civil Liberties Union (ACLU) announced in May a new State Supreme Court Initiative, which aims to advance abortion, LGBT issues and more through litigation at the state level.

State supreme courts “offer promise in the face of a hostile federal judiciary,” the ACLU wrote in its May 2 announcement, citing victories such as blocking a state law that prevented clinicians from providing early abortions in Montana and securing a restraining order in North Carolina against a school that prevented a girl who identifies as a boy from using the boy’s bathroom.

The initiative features new staff and resources: the ACLU’s announcement notes it hired two senior staff attorneys, former Planned Parenthood litigator Julie Murray and former Legal Director of the ACLU of Massachusetts Matthew Segal, to work specifically on the State Supreme Court Initiative. Their website also features a summer 2023 legal intern job listing focused on the initiative as well as a paralegal job opening.

Thomas Jipping, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation this idea has “been around for a long time.”

“It’s a tactical decision, and that’s what lawyers do,” he said. “Lawyers bring cases where they are more likely to win.”

More than 60 years ago, former Justice William Brennan was “speaking about the Supreme Court as an inhospitable place” for individual rights, Jipping said. During a 1977 lecture at Harvard Law School, Brennan noted that “more and more state courts are construing state constitutional counterparts of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased.”

“A lot of the challenges to pro-life laws before Roe v. Wade were in state court,” Jipping said.

Abortion rights activists protest in front of the Colorado State Capitol in Denver, Colorado on June 27, 2022, four days after the US Supreme Court striked down the right to abortion. (Photo by Jason Connolly / AFP) (Photo by JASON CONNOLLY/AFP via Getty Images)

More recently, turning to state courts has also been a favored strategy for activist-backed left-wing cities pursuing climate lawsuits against oil companies for alleged climate damages, which tend to view them as a more sympathetic venue for their claims.

There’s multiple factors that may lead legal groups to bank on state courts being friendlier to liberal causes. The ACLU notes state courts can interpret their constitutions to be more protective of rights, have the final say on state law and are responsible for most day-to-day regulation. State constitutions also tend to be easier to amend.

“Last election, you had three states that put reproductive freedom language into their state constitutions,” Jipping said, referencing California, Michigan and Vermont. “Other states have or refer to a right to privacy, but they haven’t necessarily been interpreted to include a right to abortion.”

The South Carolina Supreme Court ruled in January that abortion is protected under the state constitution’s right to privacy. The Oklahoma Supreme Court found in March that its constitution protects a right to abortion when necessary to save the life of the woman.

State judicial elections have a role to play as well. In the federal system, where judges do not have term limits, “you don’t have a risk of trying to manipulate the choice of justices in order to help you win cases,” Jipping said. “That possibility does exist in judicial elections at the state court level,” he continued.

Wisconsin’s recent supreme court race—where issues like legislative maps and abortion played a central role—became the most expensive judicial race in U.S. history, totaling over $45 million in campaign contributions, Open Secrets reported. Outside groups spent a total of $28.8 million: $16.76 million for conservative candidate former state Supreme Court Justice Daniel Kelly and $11.61 million for the winner, liberal candidate Judge Janet Protasiewicz, according to the Wisconsin Democracy Campaign.

In the 2019-2020 election cycle, $100 million was spent on state supreme court races, according to the Brennan Center.

With the potential implications in mind, some organizations are trying to raise awareness about state races and litigation. Last year, the Alliance For Justice launched a State Court Justice Project to “educate the public on the impact and importance of state courts.”

The Brennan Center tracks the racial, ethnic and gender diversity of state supreme court benches, along with pending state abortion litigation. It intends to launch its State Court Report, currently a newsletter, into a standalone publication and resource hub featuring news and analysis, according to a job listing.

“Obviously, you have to go state-by-state,” Jipping said, noting there are pros and cons to the strategy of litigating in state supreme courts. “The legal environment may be more receptive, but the results of winning are not as extensive.”