Scorecard for State Supreme Court Transparency

Nearly fifty years ago, former Supreme Court Justice William Brennan, Jr., observed that “state courts no less than federal are and ought to be the guardians of our liberties.” He was right. More than 98 percent of court cases filed in the United States are in state courts, and state courts play an outsized role in certain areas of the law, including the rights of criminal defendants and family rights.

But the capacity of state courts to guard our liberties depends in significant part on whether those courts adopt transparent processes that allow members of the public to learn about, monitor, and participate in important state court cases.

Nowhere in the judiciary is the need for transparency more critical than in state supreme courts. Each state has its own constitution, and those constitutions can—and often do—go further than the U.S. Constitution to protect our rights. State supreme courts have the final say as to what state constitutions mean, and the U.S. Supreme Court has no power to review state court decisions that rest entirely on state law.

Accordingly, state supreme court decisions—much like those of the U.S. Supreme Court—can be enormously consequential for people’s everyday experiences. In reliance on state constitutions, state supreme courts have, for example:

• Led the way in recognizing the right of same-sex couples to marry, long before the U.S. Supreme Court did;
• Declared the death penalty unconstitutional despite contrary federal law;
• Protected access to reproductive health care, despite a U.S. Supreme Court decision eliminating the right to abortion; and
• Provided more robust protection to people who have or could be subject to unreasonable searches and seizures.

Given the stakes, it is imperative that the public have meaningful access to pending cases in state high courts, yet access varies dramatically across the country. Some transparency is legally required by common law and the federal First Amendment, which gives the public a right to access certain court documents. But beyond this baseline, whether you can easily access briefs, dockets, and the issues under consideration in your state’s high court will depend on where you live.

To assess transparency, and to encourage improvements, the ACLU’s State Supreme Court Initiative reviewed all state high court websites for four key practices, all of which are already in place at the U.S. Supreme Court. These practices help ensure the public and the press are able to learn about, monitor, and—where appropriate—meaningfully participate in ongoing cases:

1. Timely publication of new pending case names and docket numbers.
2. Timely publication of the questions presented in pending cases.
3. Free and timely public access to docket information and lists of filings.
4. Free and timely public access to parties’ state supreme court briefs.

Based on the ACLU’s review of the four key practices identified above, we have assigned Tiers to each state and the District of Columbia. States in Tier 1 adhere to all four practices, while—on the other end—states in Tier 5 follow none of the four practices. With each state, we provide a summary of the available types of information and hyperlinks to relevant court websites.

Most state supreme courts fall far short of providing meaningful public access to their pending cases.

As demonstrated in the map above, only 6 state supreme courts—Massachusetts, Michigan, Ohio, Texas (Criminal), Washington, and Wisconsin—qualify for Tier 1 by having practices that meet these four criteria. In contrast, 6 state high courts fall into Tier 5, meaning they do not follow any of the identified transparency practices, and another 26 of them follow only one or two of those key practices.

Improving transparency in state high courts around the country would have numerous important benefits for the public. For example, when state supreme courts list pending cases and the legal issues they present, the public can more easily identify cases with statewide consequences before they are decided. When state supreme courts provide access to docket information, the public can track cases as they unfold. And when state supreme courts make briefs available for free online, members of the public can understand what is at stake in each case and whether, in their view, the state supreme court’s subsequent decision gets it right. In addition, the free availability of briefing helps level the playing field between repeat litigants like state prosecutors, who may have their own internal brief banks, and individual litigants, who do not.

Fortunately, state supreme courts with room to improve need not recreate the wheel. Ready examples exist in state high courts around the country and in the U.S. Supreme Court, and these examples could, at minimum, serve as a model for state-specific modification.

Where possible, we therefore link to examples on state high court websites in the information provided with each state below, with the hope that these examples help courts and advocates who appear before them identify promising practices that could be replicated in their states.

There are, of course, some notable limitations to these findings that warrant further consideration.

Even in those states adhering to most or all of the transparency practices we highlight here, case access often excludes some subset of a court’s docket, such as those cases involving a court’s original jurisdiction. Our criteria gave state courts credit if we could access a meaningful number of new cases such that the public had a general sense of what cases a court was considering. In most state courts, posting grants of discretionary review qualified as a yes, even if they did not post original jurisdiction cases or appeals as of right. As a result of this approach, for certain types of cases, a court’s level of openness may be decidedly lower than the grade assigned here would suggest.

The four criteria evaluated here, although serving as a necessary floor, are far from the only relevant measures of transparency. The public also has an interest, for example, in ready access to oral arguments, information about judicial recusal, and openness as to a state court’s handling of its “shadow docket.” State supreme court rules on the filing of amicus curiae briefs and argument also vary widely, with states like New Jersey providing an interesting model. Further research in and court attention to this area is needed.

These findings do not attempt to gauge how effectively a court uses its existing resources or whether a high court’s lack of case transparency is related to a shortfall in state funding or staffing or an unusually large caseload. Of particular concern, some state legislatures have recently imposed limitations on state judicial resources in retaliation for court decisions. And Delaware, District of Columbia, Maine, Montana, New Hampshire, Rhode Island, South Dakota, Vermont, and Wyoming do not have intermediate courts of appeals, so their high courts generally have far less control over the type and volume of cases they decide than courts in other states do.

Q: Why are state supreme courts important to civil liberties and civil rights? What impact can they have?

In recent years, federal courts have grown increasingly hostile to the protection of civil liberties. In this time of retrenchment, state supreme courts play an especially important role in protecting — and expanding — constitutional rights.

For example, in reliance on state constitutional protections, the Supreme Court of Hawaii led the way toward recognizing the right of same-sex couples to marry long before the U.S. Supreme Court did. Similarly, the Connecticut Supreme Court declared the death penalty unconstitutional, and the Kansas Supreme Court recognized a right to make decisions about one’s body, including to have an abortion, a ruling unaffected by the U.S. Supreme Court’s decision eliminating a federal right to abortion.

Q: What types of cases do state supreme courts hear? What are some important issues before these courts?

The vast majority of court cases in the United States take place in state courts, including cases that implicate core civil liberties, from reproductive justice to policing, LGBTQ rights, freedom of speech, voting rights, and more.

For example, the Wisconsin Supreme Court is considering whether the Wisconsin Constitution protects a person’s ability to decide whether to have a child and to obtain an abortion. And the Supreme Court of South Carolina will soon hear a challenge to the state’s gerrymandered congressional map, which the ACLU and other groups argue is a violation of voters’ right to “free and open” elections protected by the state constitution.

Q: Our report shows that some state supreme courts are better at transparency than others. What can be done to improve transparency?

When the U.S. Supreme Court takes a case, the Court says on its website what the legal questions are, and the public has access to the briefs and schedule. The Court does this for good reason: These cases are important. The way they’re decided will have a dramatic impact on people’s daily lives. And people are more likely to trust and respect decisions that are made in the light of day.

The stakes in state supreme courts around the country are similarly high. Yet, in a substantial number of state supreme courts, it’s impossible for the public and the press to tell what issues are at stake in a pending case, or to even identify a new pending case, based on regularly released court information.

Q: Are there states that have already implemented robust transparency practices?

There are state supreme courts around the country — in big and small states, red and blue ones, and every region — doing innovative things when it comes to public access to pending cases.

The Washington Supreme Court, for example, allows members of the public to sign up to receive email notifications of newly granted cases. The Texas Court of Criminal Appeals maintains a running list of all pending cases and issues before it. And some courts have started making briefing available online in near real time.

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SSCI staff Bridget Lavender, Xinge Hong, and Julia Birnbach provided the research on which this report is based. The SSCI also wishes to thank Angela Wu for her early feedback on this project.