The Constitution and the Rule of Law
November 19, 2025
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When most Americans think about the judiciary, the U.S. Supreme Court typically comes to mind. Yet the state courts that handle the vast majority of legal cases in this country operate under constitutional frameworks that can differ significantly from their federal counterpart. Understanding how state supreme courts function, and the judicial philosophy that guides them, reveals essential truths about the American constitutional system and the ongoing challenge of maintaining and respecting the rule of law.
The Evolution of State Judicial Power
Ohio’s Supreme Court offers a compelling case study in how state judiciaries have evolved since the nation’s founding. Established in 1802, the court’s powers have undergone substantial transformation through multiple constitutional conventions, each attempting to resolve practical problems as the state grew in population. The powers granted in 1802 bear little resemblance to those exercised today.
Modern state supreme courts serve multiple functions beyond simply deciding cases. They act as the final arbiter on questions of state constitutional law, resolve conflicts between intermediate appellate districts, and in Ohio’s case, hear death penalty appeals directly from trial courts. This last authority, granted by Ohio voters in 1994, came about because capital cases were taking too long to wind through the intermediate appellate courts before reaching the state’s highest court and eventually entering the federal system.
Perhaps less visible but equally significant are the administrative powers that modern state supreme courts wield. The 1968 Modern Courts Amendment in Ohio fundamentally shifted how courts operate by granting the Supreme Court authority to create rules of practice and procedure. When the court adopts a rule that conflicts with an existing statute, the statute sunsets automatically. However, the Ohio Constitution includes an important check: the General Assembly can veto these rules, maintaining the balance between branches.
Beyond rulemaking, state supreme courts often shoulder enormous administrative burdens. The Chief Justice typically assigns judges to courts across the state when elected judges cannot hear cases or vacancies exist, a responsibility that generates thousands of requests annually. The court also decides disqualification cases when parties or lawyers believe a judge is biased or has a conflict of interest. These administrative functions, while less glamorous than constitutional decisions, directly affect whether justice gets delivered in a timely fashion.
The Case for Elected Judges
One of the most distinctive features of most state judiciaries is that judges face the voters. Ohio adopted judicial elections in 1851 after five decades of experience with appointed judges proved unsatisfactory. Under the original appointment system, where the House and Senate jointly selected judges, judicial independence suffered as judges became subject to the political winds of the General Assembly. When partisan control of the legislature shifted, judges often lost their positions regardless of their competence or integrity.
The 1851 constitutional convention debated this issue extensively. Critics worried that elections would politicize the judiciary. Supporters argued that elections create accountability to the people while allowing judges to serve during good behavior, rather than at the pleasure of politicians in the legislature. A delegate from Fairfield County captured the pro-election argument succinctly: when citizens can elect judges, they hold them accountable while preventing the despotism and tyranny that can emerge when judges answer only to a small group making selections in a back room.
Ohioans have twice rejected attempts to eliminate judicial elections, once in the 1930s and again in the 1980s, roughly 50 years apart.
Textualism and the Limits of Judicial Power
The most consequential debates about courts, however, concern not how judges are selected but how they interpret law. Judicial philosophy exists on a spectrum. At one end sits the view that judges should interpret legal texts based strictly on their original meaning at the time of enactment. This textualist or originalist approach insists that judges apply the law as written, not as they might wish it to be, even when they personally disagree with the outcome.
This philosophy rests on the principle of enumerated powers. The Constitution grants specific authorities to each branch of government. If the text does not explicitly grant a power to courts, they cannot exercise it. This stands in contrast to the view that if the Constitution does not prohibit something, courts may do it. The difference is profound. One approach sees government power as limited to what is explicitly granted. The other sees it as unlimited except where explicitly restricted.
Applying textualist principles can frustrate judges and citizens alike. Sometimes courts must strike down laws as unconstitutional and send them back to the legislature for correction, only to receive revised laws that still fail constitutional muster. This cycle can repeat multiple times. The temptation to simply fix the problem by crafting a solution from the bench becomes strong.
Ohio’s DeRolph school funding litigation illustrates this tension. After the court twice declared the state’s school funding mechanism unconstitutional and sent it back to the General Assembly, the revised plan returned a third time, still constitutionally deficient in the court’s view. In DeRolph III, the court did something different. Rather than again remanding to the legislature, it picked up the pencil, so to speak, and created its own school funding formula.
Within days, parties filed a motion for reconsideration pointing out that the court’s formula relied on faulty evidence and far exceeded the state’s budget capacity. The court granted the motion, sent the parties to mediation, and when that failed, ultimately vacated its order and sent the matter back to the General Assembly once more. The episode demonstrates the importance of judicial restraint and respecting the proper roles of each governmental branch.
Separation of Powers in Practice
The Constitution establishes separation of powers both vertically (between local, state, and federal governments) and horizontally (between legislative, executive, and judicial branches). Courts decide whether laws are constitutional, but they cannot then become the legislature and write new laws. The two branches operate fundamentally differently.
When legislatures craft laws, they hold committee hearings, gather proponent and opponent testimony, conduct public forums, and investigate thoroughly. Courts work differently. Judges sit in solitude, reading briefs and examining cold records. They do not take testimony about what the public thinks or conduct hearings about what the law should say. This process does not lend itself to acting as the final arbiter of public policy.
Maintaining this separation requires judges who remain firm in their commitment to restraint, who honor their limited role by declaring what the law says rather than what they believe it should be. When courts overstep these boundaries, they threaten the constitutional system itself. If one branch usurps the power of another, the constitutional republic cannot survive.
Preserving Constitutional Government
Ultimately, preserving the rule of law requires public understanding of what courts can and cannot do. Civic education becomes essential. When citizens understand the limited constitutional role of courts, they can better evaluate judicial performance and maintain appropriate expectations. They can appreciate why courts sometimes reach decisions that seem unsatisfying but respect constitutional boundaries.
The rule of law depends on fair and impartial application of legal principles, free from political or media influence, grounded in the text of constitutional and statutory provisions. Countries with strong rule of law consistently applied tend to thrive. Those without it struggle. For America’s constitutional republic to endure, each branch must respect its proper role, and citizens must understand why those limitations exist. The alternative is the gradual erosion of the very system designed to protect liberty and ensure justice.