The 2006 campaign season has witnessed an onslaught of challenges to one of our nation’s longest serving incumbents: federal judicial supremacy. On Tuesday, voters across the country will decide the future of this notion—that the decisions of the United States Supreme Court bind the decisions of state courts—in the form of ballot initiatives proposing term limits, recall measures, and citizen suits against judges who make unpopular decisions. The issue has garnered attention from commentators as diverse as retired Justice Sandra Day O’Connor and Phyllis Schlafly.

The stakes of the debate are best illuminated by a dispute in Alabama earlier this year. Justice Tom Parker of the Alabama Supreme Court in essence kicked off the campaign against judicial supremacy when he publicly lambasted his colleagues for their decision to block the execution of Renaldo Adams. Parker, who did not participate in the case, decried the Adams decision as a rampant display of judicial activism. What made his denunciation remarkable was that the Alabama court followed the precedent of the United States Supreme Court in Roper v. Simmons, which declared the execution of minors unconstitutional. Adams was seventeen years old when he received a death sentence: Roper clearly governed his case.

The unanimous two-page opinion which provoked Parker’s furor did not marshal the usual accusations hurled at “judicial activists.” He did not accuse the court of invoking the so-called “living Constitution,” that bends to fit the times, nor did he accuse them of judging based on personal sympathies. To the contrary, he argued that the Alabama Supreme Court was not bound by the United States Supreme Court’s decision in Roper. Such a broad rejection of the Supreme Court’s authority threatened a battle over the role of federal courts and judicial supremacy.Many of Parker’s colleagues on the Alabama Supreme Court probably agreed that Roper was wrongly decided—likely for its reliance on foreign law. What divided Parker from his equally conservative colleagues on the Alabama court is that they did not believe they could ignore Roper. Parker saw this dispute as a difference in “judicial philosophy” and embraced methods of resistance—violating federal court orders, and refusing to apply controlling Supreme Court precedent. His colleagues did not.

More significantly, by taking his challenge directly to the Alabama electorate, Parker asked voters to join him in ousting judicial supremacy from its privileged place in the state’s judiciary. Other initiatives have quickly followed. Most striking is the South Dakota proposal which would allow citizens to sue judges who issue unpopular decisions even when the state court is bound by Supreme Court precedent.

These cries against judicial activism reveal a broader critique of the supremacy of federal courts. In the 1950s and 60s, the U.S. Supreme Court reasserted its authority over state courts on matters of constitutional interpretation in the wake of Southern backlash to federal court-imposed integration. In 1958, the Court declared itself the ultimate and exclusive arbiter of constitutional meaning in Cooper v. Aaron,when it ordered the Governor of Arkansas to stop flouting the Court’s mandate to integrate schools. At that time, the rhetoric of defying federal courts was intertwined with issues of race, and most saw these challenges to judicial supremacy as a dressed-up rejection of racial integration. As these disputes subsided, the authority of federal courts to interpret the Constitution was embraced broadly.

The ability of a state court to reject the constitutional holdings of the United States Supreme Court would have staggering implications: the protection and the meaning of constitutional rights—including free speech, due process, and protection from cruel and unusual punishment—would vary from state to state. This would dramatically change our understandings of our own constitutional rights. Imagine going to another state and discovering that you could not worship where you pleased because that state’s supreme court had interpreted the Establishment Clause to ban your denomination.

While Parker and his view of judicial supremacy were defeated in the Alabama primaries, like-minded challenges brought in South Dakota, Montana, and Colorado suggest that judicial supremacy is now a permanent part of the national political agenda.South Dakota’s proposed Judicial Accountability Initiative Law (JAIL) would allow citizens to attack judicial supremacy indirectly by suing state court judges who follow unpopular Supreme Court precedents. Should the South Dakota courts face a case requiring application of Roper, they may be wary of applying the unpopular precedent for fear of retribution by individual citizen suits.

Judicial term limits proposed in Colorado, targeted at so-called activist judges,raise the specter of similar reprisals against judges in other states and may have a chilling effect on judicial behavior that reaches beyond the borders of the Rocky Mountain state. And the judicial recall measure proposed (but ultimately defeated) in Montana would have had a similar effect:state judges might have been forced to renounce Supreme Court precedent rather than face recall.Commentators have noted the potential of these ballot measures to undermine judicial independence on the state bench, but they have overlooked the fact that these initiatives may provide mechanisms for attacking federal judicial supremacy.

Ballot initiatives in each of these states have made resistance to federal courts a major issue in the 2006 elections. Each of these measures would allow the electorate a new measure of control over state court judges and the decisions they choose to follow. Though the electorate might not be ready to reject the idea of judicial supremacy just yet, they will be forced to take a stand at the ballot box.

Jaynie Randall is a recent graduate of Yale Law School.

Preferred citation: Jaynie Randall, Federal Judicial Supremacy on the Ballot, 116 Yale L.J. Pocket Part 137 (2006), http://yalelawjournal.org/forum/federal-judicial-supremacy-on-the-ballot.