Channel the Panel to Improve State Supreme Court Independence

By
Aditya Medicherla
46 Mitchell Hamline L.J. of Pub. Pol’y and Prac. 103 (2024)

State supreme courts are overly political. The election of state supreme court justices is one reason for this troubling reality. With recent decisions by the Supreme Court of United States functionally delegating issues of great importance—including issues many view as fundamental rights, such as abortion and voting rights—to the states, focus has shifted from the highest court of the land to the highest courts within each state. As the new battlegrounds for high-stakes litigation, state supreme court neutrality is ever more important, not just for the public, but for our democracy as whole. Our democracy is only as strong as the public’s trust in its institutions. But how can an institution maintain its neutrality when its agents are selected by the most political mechanism available-elections?

This Article suggests a method where states can keep electing supreme court justices while improving court neutrality—the panel system. Under this system, people elect more justices. But instead of hearing cases en banc, or as a full court, supreme courts will hear cases in subset panels. Both justices and cases are assigned at random to these panels. Such a system decreases politicization because it introduces uncertainty. Random assignments reduce the stakes involved in the election of a justice because there is no certainty that the justice will ever hear a particular case or issue of high importance. Lower stakes would result in less interest, and less money spent on elections, leading to an overall decrease in politicization of state supreme courts.