# Supreme Court can't tell state courts what to do. Huh? **URL:** \ **Category:** Factual Questions\ **Created:** [September 24, 2003, 4:28pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560 "2003-09-24T16:28:35Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![1kBR\_Kid](https://avatars.discourse-cdn.com/v4/letter/1/dc4da7/32.png) [@1kBR\_Kid](https://boards.straightdope.com/u/1kBR_Kid)\ **Post date:** [September 24, 2003, 4:28pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/1 "2003-09-24T16:28:35Z")
I saw a lot of that during the Judge Moore debacle. I go to some outdoor/shooting forums and that seemed to be doctrine for far right wingers. Does this argument hold ANY water? I would think that there is no question. Higher court would rule. What’s the point otherwise, right? Where does this argument come from?? (besides their desire to interpret the constitution in their favor) ---
**Author:** ![BrotherCadfael](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)\ **Post date:** [September 24, 2003, 4:39pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/2 "2003-09-24T16:39:53Z")
If the issue is one of interpreting the state consistitution, then the state supreme court is in fact the highest authority. The federal courts only get involved if the issue raises issues with federal laws or the US Constitution. In the Judge Moore situation, the placement of the Ten Commandments monumement raised issues relating to the 1st Amendment to the US Constitution, so the federal courts stepped in. (Apparently Moore is of the opinion that the last 40 years of 1st Amendment jurisprudence is ill-advised and just plain wrong. This does not excuse him from the obligation of following the Supreme Court’s rulings.) On the other hand, in Nevada recently, the state supreme courts issued an opinion (negating a clause in the Nevada constitution requiring a supermajority vote in certain tax cases) that most analysts have described charitably as laughable, but the Supremes have nothing to say abou the matter, because it raises no federal issues. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [September 24, 2003, 4:41pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/3 "2003-09-24T16:41:52Z")
We live in a federal system. That means certain powers belong to the states and only the states. U.S. Constitution, Article III, Sec. 2: > [@](#): > > The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; — to all cases affecting ambassadors, other public ministers and consuls; — to all cases of admiralty and maritime jurisdiction; — to controversies to which the United States shall be a party; — to controversies between two or more states; — between a state and citizens of another state; — between citizens of different states; — between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. And the Tenth Amendment: > [@](#): > > The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [September 24, 2003, 6:27pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/4 "2003-09-24T18:27:25Z")
> [@](#): > > On the other hand, in Nevada recently, the state supreme courts issued an opinion (negating a clause in the Nevada constitution requiring a supermajority vote in certain tax cases) that most analysts have described charitably as laughable, but the Supremes have nothing to say abou the matter, because it raises no federal issues. Do you have any more information on this case? I’m interested to know on what grounds a body charged with interpreting a state constitution declare a portion of that constitution unconstitutional without raising federal issues. ---
**Author:** ![BrotherCadfael](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)\ **Post date:** [September 24, 2003, 6:53pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/5 "2003-09-24T18:53:40Z")
> [@](#): > > \*Originally posted by Otto \* > \*\*Do you have any more information on this case? I’m interested to know on what grounds a body charged with interpreting a state constitution declare a portion of that constitution unconstitutional without raising federal issues. \*\* Most of what I have seen on this case comes from the [Volokh Conspiracy](http://volokh.com), a blog co-written by a number of law professors and other interested parties, under the heading of [“Nevada Supreme Court Orders Violation of the Nevada Constitution”](http://volokh.com/2003_07_06_volokh_archive.html#105788769924713715). While the post is fairly long, here’s the gist: > [@](#): > > \*\*I just read one of the most appalling judicial decisions I’ve ever seen. It was just handed down today, and it’s [available here](http://nvsupremecourt.com/pdf/GPetition/41629.Decision.pdf) (Guinn v. Legislature). > > Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There’s a shortfall. The Legislature hasn’t funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I’m paraphrasing the court’s statement of the facts.) > > The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That’s right, the two-thirds majority requirement is right there in the Nevada Constitution: > > 1. Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each house is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates. > > 2. A majority of all of the members elected to each house may refer any measure which creates, generates, or increases any revenue in any form to the people of the State at the next general election, and shall become effective and enforced only if it has been approved by a majority of the votes cast on the measure at such election. > > But the Nevada Supreme Court has held that the Legislature must ignore this requirement.\*\* There was an appeal made to the US Supreme Court, but this was [denied](http://www.nvd.uscourts.gov/nvd/CourtInfo.nsf/1f1a15887e6a34d48825643c000aef8c/c73a9990bef34e8588256d6700664927/%24FILE/CV-N-03-0371-0024.pdf) on the grounds that the Nevada Supreme Court is the supreme arbiter of the Nevada Constitution, absent any federal constitutional issue. The Volokh site has quite a bit of discussion about this, although you will have to search through their archives to locate it. ---
**Author:** ![Opus1](https://avatars.discourse-cdn.com/v4/letter/o/858c86/32.png) [@Opus1](https://boards.straightdope.com/u/Opus1)\ **Post date:** [September 24, 2003, 6:54pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/6 "2003-09-24T18:54:03Z")
Otto–here’s a link on the case: [http://www.cfif.org/htdocs/legislative\_issues/state\_issues/nevada\_judicial\_activism.htm](http://www.cfif.org/htdocs/legislative_issues/state_issues/nevada_judicial_activism.htm) The gist: they convinced the court that the supermajority provision conflicted with another provision of the Nevada constitution. The argument looks incredibly specious to me. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 24, 2003, 6:55pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/7 "2003-09-24T18:55:39Z")
Do you mean to say that you think it should raise federal issues? Because just on the information given, I don’t see any federal issues. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [September 24, 2003, 8:29pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/8 "2003-09-24T20:29:10Z")
Yeah, based on the information in **Opus1** ’s link I’m not seeing any federal issue. The only one I can come up with through the most tortured of logic is a possible First Amendment infringement based on the right of the people who want tax increases to petition the government on the same terms as people who want to petition the government for redress of other grievances. But I wouldn’t buy that argument were I sitting on the bench. As much as I deplore the action of the state supreme court in this matter I must add that those “supermajority for tax increase” laws and amendments are stupid. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [September 24, 2003, 10:11pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/9 "2003-09-24T22:11:11Z")
Just to chime in – State constitutions can be broader in their grant of rights than the U.S. Constitution is. For example, my home state has a very broad right to privacy – much broader than that conferred by the federal Constitution. So when I was a clerk for a state supreme court, the court was usually quite careful to state that its various constitutional decisions were based not solely on federal constitutional authority, but also _and independently_ on state constitutional authority. That way even if a federal court wished to invalidate the expansion of a particular right on the grounds that such expansion was not warranted under the federal constitution, it (the federal court) had no power to invalidate the expansion if the right in question (or the parameters thereof) was based on the state constitution. For example, the issue of whether infrared imaging violates the federal right to privacy was not at the time of my clerkship a settled question. (It may have been settled since; I can’t recall.) But the supreme court of my state held that it _was_ a violation of the _state_ right to privacy granted in the _state_ constitution. That ruling was immune from further challenge because the state supreme court was the highest court in that jurisdiction, and the case presented solely a question of state law. Under those circumstances – no federal question presented – the Supreme Court cannot tell the states what to do. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [September 24, 2003, 10:16pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/10 "2003-09-24T22:16:03Z")
Note that the reverse is not true, however. The states cannot _narrow_ the rights granted by the federal constitution through their state constitutions. (Any attempt to do so automatically presents a federal question.) But there’s nothing to prevent the states from _expanding_ those rights and, if they do so, then any resulting questions will be based on the state constitution and therefore will be a question of state law. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [September 25, 2003, 1:29am UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/11 "2003-09-25T01:29:53Z")
FWIW, the Nevada case did not declare an amendment to the state constitution unconstitutional, as is often reported. We did an analysis of this on a thread a month or two ago, Rather, what it did was to (a) find that the provisions of two sections of the state constitution, as amended, did in fact conflict as claimed, and (b) _interpret_ the state constitution to rectify the conflict, as is its bounden duty under the laws under which it was established. To wit, there is an affirmative constitutional mandate that the public schools be adequately funded (by state funds) in Nevada. The legislature was unable to provide adequate funding in the budget it adopted without raising taxes. Anorther constitutional mandate requires that a 60% supermajority pass any tax increase. The court decided that (a) the legislature must fund the schools, that being their duty under the constitution. If they choose to do so by not raising taxes and cutting other programs to free up the necessary funds, fine. But (b) there being an affirmative duty to adequately fund the schools, if they cannot agree to cut other programs to do so within the available funds from current taxes, they are free to pass a tax increase by a 50%+1 vote, said increased taxes being devoted to the school system funding. The logic was that the specific supersedes the general. While in general the legislature is prohibited from increasing taxes by other than a supermajority, they are not free to ignore a constitutional mandate that they are required to honor because they cannot agree (party representation being almost equal) on how to fund it. They are therefore entitled, by a normal majority, to increase taxes for this one particular constitutionally mandated purpose without the other (supermajority) requirement coming into play. Note that this was in essence an example of judicial self-restraint. Rather than taking it upon itself to make the budget comply with both constitutional provisions simultaneously by mandating program cuts, it resolved the constitutional question with which it was faced and handed the problem back to the legislature, with a constitutional-law guideline as to what might be done to solve the problem. That the resolution of the problem is likely to result in increased taxes is owing to stubborn legislators, not to the court. Minor amplification on **Jodi** ’s post: It’s my understanding that when a case can both be resolved under state law and presents a federal question, a decision based independently on state law and a resolution of the federal question cannot be appealed to the federal system. E.g., Smith alleges that his First Amendment rights have been violated, but also that his freedom of speech rights under the State Bill of Rights were violated. The court finds that in fact his rights under both were violated, but in a very minimal way, awards him $1 in damages, and closes the case. That verdict is upheld throughout the state system. No appeal to the federal system is possible, because the case was resolved by reference to the state Bill of Rights in a way conformable to the federal question. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [September 25, 2003, 2:57pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/12 "2003-09-25T14:57:04Z")
Interestingly, if a state supreme court decides a case but does not make it clear whether the rationale for decision was state law it the state court’s interpretation of federal law (and it could be either), the U.S. Supreme Court assumes that the state court was speaking to federal law. If the U.S. Court disagrees with that interpretation, then it will remand the case back to the state court, which can then say “No, we were analyzing state law, not federal law,” reinstate the decision, and the U.S. Supreme Court is impotent to revise it. –Cliffy ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [September 25, 2003, 4:10pm UTC](https://boards.straightdope.com/t/supreme-court-cant-tell-state-courts-what-to-do-huh/203560/13 "2003-09-25T16:10:59Z")
Jodi said > [@](#): > > For example, the issue of whether infrared imaging violates the federal right to privacy was not at the time of my clerkship a settled question. (It may have been settled since; I can’t recall.) Yup. Settled in [Kyllo v United States](http://supct.law.cornell.edu/supct/html/99-8508.ZS.html) 533 US 27 (2001).