The examples of congressional and presidential checks on the judiciary described above demonstrate some of the most important “internal controls” the Constitution places on the exercise of federal judicial power. In Federalist #51 Publius explained that state governments also have a role in limiting national power:
In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
State responses to Supreme Court decisions that invalidate state laws provide examples of ways in which the states can check the exercise of federal judicial power. Supreme Court decisions that name only one state often have far-reaching implications because other states have similar laws. It is not uncommon for states to join with one another in their legal and political responses to court decisions.
States often comply with Supreme Court decisions by modifying their constitutions or laws. For example, in Furman v. Georgia (1972), the Supreme Court held that the legal process that the states of Georgia and Texas used in imposing the death penalty violated the Eighth Amendment. Furman effectively nullified death penalty laws in all states that recognized capital punishment. States immediately began revising their death penalty statutes. The court lifted the moratorium four years later in Gregg v. Georgia (1976). It held that capital punishment does not violate the Eighth Amendment so long as the sentencing authority (judge or jury) is given “the information relevant to the imposition of sentence and provided with standards to guide its use of the information.”
In Reynolds v. Sims (1964), the Supreme Court extended the so-called reapportionment revolution from congressional districting to state legislatures. It held that electoral districts for both houses of state legislatures must satisfy the “one person, one vote” rule. The ruling ended the common practice of county representation in the upper house of state legislatures (like state representation in the United States Senate). Reynolds invalidated the method of electing representatives in every state except Nebraska (that state’s unicameral legislature is selected in a manner that satisfied the one person, vote requirement). The court’s reapportionment rulings drew firestorms of protest, and calls for constitutional amendments. Eventually, however, states brought their constitutions into compliance and calls for constitutional amendments waned.
States also have defied Supreme Court decisions. A famous example is Georgia’s refusal to recognize exclusive federal authority over American Indian tribes in Worcester v. Georgia (1832). There are contemporary examples as well, at least one of which led rather quickly to a change in federal policy.
In 1996, California voters adopted an initiative called the Compassionate Use Act that permits licensed physicians to authorize patients with serious illnesses to cultivate, possess and use marijuana. Since 1937, however, the federal Controlled Substances Act has made possession and use of marijuana a federal crime. In. Gonzales v. Raich (2005), the Supreme Court held that the authority of Congress to prohibit the local cultivation and use of marijuana for medical purposes trumps state laws allowing such use.
After the decision, attorneys general in the ten states whose laws permitted the use of marijuana for medical purposes advised state agencies charged with administering medical marijuana programs to continue those programs. California’s attorney general, for example, said, “Californians spoke overwhelmingly in favor of medical marijuana by passing. . . the Compassionate Use Initiative, and that law still stands in our state.” Today, more than half of the states have medical marijuana laws and several others, as well as the District of Columbia, have enacted laws permitting the recreational use of marijuana. In late 2014, Congress quietly ended the federal government’s ban on medical marijuana. It embedded a provision in a 1500-page spending bill stating that, in states in which the use of marijuana for medical purposes is legal, federal drug officials are no longer authorized to raid retail sales stores.
Sometimes state resistance can result in the Supreme Court modifying its original ruling or approach to a constitutional problem. One example is the decades-long resistance to school desegregation after Brown v. Board of Education (1954). More than fifty years after Brown, public school racial segregation persisted in many parts of the country. During that time, the Supreme Court’s approach to equal protection analysis under the Fourteenth Amendment also hanged somewhat. In Parents Involved in Community Schools Inc. v. Seattle School District (2007), for example, the court held that the equal protection clause of the Fourteenth Amendment prohibits public school districts from using race as a factor in attempting to achieve racial diversity in its public high schools.
Another example is Gideon v. Wainwright (1963). The court in that case held that indigent criminal defendants are entitled to court-appointed counsel in cases for which conviction could result in incarceration. In response, most states developed public defender offices or created panels of lawyers who agreed to represent indigent defendants. However, some states found ways to undercut the rule through techniques such as capping the amount a court-appointed lawyer may bill for representing an indigent defendant or requiring the defendant to agree to engage in negotiations with prosecutors about pleading guilty to lesser charges before counsel is appointed. Lawyers who represent indigent defendants often carry overwhelming caseloads. Critics claim that many states have implemented Gideon in ways that perpetuate inferior justice for indigent defendants. However, in Strickland v. Washington (1984), the Supreme Court set a very high bar for defendants who claim that they received inadequate assistance of counsel.
These examples demonstrate that constitutional decisions by the Supreme Court do not necessarily mean that the Supreme Court has the last word. States share a role with the national government in implementing Supreme Court decisions. States have demonstrated significant ingenuity in protecting their own approaches to governance. There are myriad examples of state opposition to Supreme Court decisions—in areas ranging from abortion and school prayer to state criminal procedures—that have led to modifications of Supreme Court decisions that states find acceptable.
States as states compose the United States Senate. The Senate is an equal with the House in Congress’s control over the federal judiciary described earlier in this segment. The Senate alone decides whether to confirm federal nominees. Increasingly, states have adopted litigation strategies that are aimed at protecting their constitutional prerogatives. Finally, states can respond to Supreme Court decisions in ways that keep constitutional controversies alive long enough for changes to occur in the make-up of the federal courts, leading to different interpretations of constitutional requirements.