From CNN's video coverage of US Attorney General Merrick Garland announcement of its lawsuit against the state of Texas:

Q: ...several GOP lawmakers who said that they will follow Texas’ lead, and I was wondering if you expect DOJ to be involved in similar actions against other states? Like would it be a leap to say this could be one of several similar actions?

A: Well as I said in my remarks, the risk here, the greater risk here, the additional and further risk here is that other state will follow similar models, with respect to not only this constitutional right, but theoretically against any constitutional right, in any other state.

So if another state uses the same kinds of provisions to deprive its citizens of their constitutional rights, and in particular to deprive their citizens the ability to seek immediate review, we will bring the same kind of lawsuit.

This September 1, 2021 US Supreme court document contains three dissenting opinions in the court's decision not to block the Texas law. Two of them call out an attempt by the law to delay, avoid, or insulate itself from judicial review.

Justice Sotomayor: Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent.

[...] Instead, the Court has rewarded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation.

Justice Kagan: The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf.

So it seems that a law's exposure to vs avoidance of judicial review is an important issue to some.

Question: Are there constitutional arguments for preventing/avoiding judicial review of state law in some scenarios? Are there any historical examples of this?

I'm not asking if this particular law does or doesn't, but whether preventing a law from judicial review has a constitutionally based argument. Historically, has it been considered a given that US state laws should be subject to judicial review, or have there been notable cases where it wasn't?


1 Answer 1


The Constitutional argument that all state laws are subject to review by SCOTUS is the Supremacy Clause, which holds that the United States Constitution (and therefore its enforcers and interpreters) and the Federal law that descends from it, automatically overrule any law passed by a state, even that state's own Constitution.

The legal principle in play is one of sovereignty, you cannot say that slavery is illegal in The United States of America, and then allow Kansas to tack on an, "Except here" and still have the former statement mean anything substantive.

This does not mean that all state laws are de facto subject to judicial review. The Court has discretion to choose what it will and will not take up on its docket - and the final authority as to what the Court may take up into its docket is The Constitution itself, the interpreter there of is... wait for it.... the Court itself.

Basically they have unlimited scope of judicial review - the check on this power is that they cannot proactively take things up. They have to wait for someone to complain loudly enough to get to their doorstep first.

So is there a historical, Constitutional argument to defend trying to defeat the Supremacy Clause? Almost certainly none that has any coherency or merit. Lawyers are creative people, however, and I'll certainly salute someone who finds one.


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