Journal of Law and Policy


In this Article we reveal a dual dilemma, both material and institutional, that the Supreme Court in its current composition faces when reviewing liberal state court decisions based on the state constitution. The Article further describes substantive and procedural tactics that the Court adopts to address this dilemma, and illustrates the arguments by analyzing a number of recent Supreme Court decisions. The two dilemmas, the combination of which serve as a “power multiplier,” of sorts, have arisen following the last three appointments to the Supreme Court, which resulted in a solid majority of conservative Justices nominated by Republican presidents. One dilemma, material in nature, that the Roberts Court faces, is between the federalist component of the conservative legal worldview, that requires federal courts to defer to state courts’ rulings based on state constitutions, and its non-liberal component, based on conservative values. The second dilemma, institutional in nature, stems from the Roberts Court’s legitimacy deficit among substantial sections of the American public, mainly supporters of the Democratic Party, which has increased as a result of the three recent appointments. The legitimacy deficit may make it difficult for conservative Justices to fully implement their judicial philosophy. We further argue that the emerging ambivalence of the Roberts Court, which is a consequence of the combination of these two dilemmas, is manifested, in addition to general avoidance doctrines and the specific state ground doctrine, also in two types of judicial tactics, substantive (such as seeking judicial compromise in order to reach a broad common denominator among the Justices) and procedural (such as encouraging other branches to carry out their obligations until the dispute is reasonably resolved), that the Court adopts in coping with liberal state court decisions based on the state constitution. In the last Part of the Article we illustrate our contentions by analyzing three recent Supreme Court decisions: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), Espinoza v. Montana Department of Revenue (2020) following Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), and Republican Party of Pennsylvania v. Boockvar (2020).