The Role of Constitutional Features in Judicial Review

Abstract

American state constitutions vary tremendously in their length, amendment rate, and age. These three variables—especially the first two—strongly influence the rate at which state supreme courts strike down state actions for violating the state constitution. Longer, more detailed constitutions reduce policy flexibility, increasing judicial invalidations; rarely updated constitutions may fail to address modern concerns, increasing invalidations; and recently adopted constitutions may contain fragile logrolls and similar shortcomings, also increasing invalidations. These findings add new considerations to a rich literature on judicial review in state supreme courts.

Competing Agendas and the Business of the American State Supreme Courts

“…With state constitutions applying unique state rules, customs, and civil rights, state supreme courts act as the final arbiters of their state constitutions and these constitutions vary dramatically in their policy content (Dinan, 2018;Hammons, 1999). Longer, more policy-based constitutions, in particular, give state supreme court decisions increased discretion when making decisions (Brown, 2018). Where state constitutions are expansive and cover many policy areas, both litigants and justices have more resources to develop cases.…”