Justice Robert F. Utter of the Washington Supreme Court analyzes the nature of judicial review by state courts interpreting state constitutions. The Article emphasizes the democratic nature of state court decisions. The public may counteract unpopular state court opinions by either voting state court judges out of office or by amending the state constitution. On the other hand, court opinions may be either affirmatively approved or ratified by inaction. State courts also serve as experimental laboratories for the United States Supreme Court by gauging the public response to and practicality of constitutional doctrines. Justice Utter suggests that the more democratic influence upon state court decisions infuses those opinions with greater democratic legitimacy than opinions of the United States Supreme Court. To the extent state opinions are adopted by the United States Supreme Court, the high court partakes of the more democratic aspects of state court constitutional law development.
Robert F. Utter,
State Constitutional Law, the United States Supreme Court, and Democratic Accountability: Is There a Crocodile in the Bathtub?,
64 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol64/iss1/5