Judicial Rulemaking Archives - Columbia Law Review

Introduction On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: Peremptory strikes, long a feature of American trial adjudication, were eliminated.[footnote]See infra Part III.[/footnote] Arizona has gone furthest, but it is not alone in reforming the law of jury selection in fundamental ways. In the span of just a few years, four other states—California, Connecticut, New Jersey, and Washington—have overhauled their approach to peremptory strikes, and others are considering doing the same.[footnote]See infra sections II.B.1–.2.[/footnote] Under the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky and its progeny, peremptory strikes substantially motivated by a prospective juror’s race[footnote]476 U.S. 79, 89 (1986).[/footnote] or sex[footnote]J.E.B. v. Alabama, 511 U.S. 127, 129–31 (1994).[/footnote] violate the Equal Protection Clause. But the new reforms are different in subtle though important ways: Most notably, they proscribe certain justifications for peremptory strikes that would disproportionately exclude protected classes from service, even when the proponent’s actual subjective motivation is pristine.[footnote]See infra section II.B.[/footnote] Nearly one-fifth of the country’s population now lives in a jurisdiction where Batson v. Kentucky ’s familiar three-part framework[footnote]As the U.S. Supreme Court has summarized the framework: Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam).[/footnote] no longer governs the validity of a peremptory strike.[footnote]Specifically, approximately sixty-seven million people—about eighteen percent of the U.S. population—live in the five states (Arizona, California, Connecticut, New Jersey, and Washington) that have adopted these reforms. See U.S. Census Bureau, Annual Estimates of the Resident Population for the United States, Regions, States, District of Columbia and Puerto Rico: April 1, 2020 to July 1, 2022 (Dec. 2022), https://www.census. gov/data/tables/time-series/demo/popest/2020s-state-total.html (spreadsheet on file with the Columbia Law Review ) (providing 2022 national and state-level population estimates); infra section II.B.1 (discussing the states that have made reforms).[/footnote] These new legal frameworks are sometimes called “ Batson -plus” regimes, insofar as they mandate heightened scrutiny of whether a peremptory strike is impermissibly discriminatory.[footnote]See, e.g., Peter B. Swann & Paul J. McMurdie, Petition at 14, In re Petition to Amend Rules 18.4 & 18.5 of the Ariz. Rules of Crim. Proc. & Rule 47(e) of the Ariz. Rules of Civ. Proc., No. R-21-0020 (Ariz. filed Jan. 11, 2021), https://www.azcourts.gov/ DesktopModules/ActiveForums/viewer.aspx?portalid=0&moduleid=23621&attachmentid=9375 [https://perma.cc/7P37-ESRW] [hereinafter Swann & McMurdie Petition] (“[A] Washington-style ‘ Batson plus’ approach will [not] be effective enough . . . .”).[/footnote] But this label elides the ways in which these states’ new laws reject core features of the U.S. Supreme Court’s decision in Batson v. Kentucky and its equal protection jurisprudence more generally: The new laws focus on disparate outcomes rather than discriminatory intent, ordinarily the sine qua non of modern constitutional discrimination claims.[footnote]See Washington v. Davis, 426 U.S. 229, 248 (1976) (declining to invalidate facially neutral state action based on racially disparate outcomes); infra section II.B.[/footnote] Surveying the “racial common sense” of the Roberts Court in her recent Harvard Law Review Foreword, Professor Khiara M. Bridges argues that “nonwhite people cannot expect the courts to intervene in the race-neutral processes that do most of the heavy lifting of reproducing racial disadvantage and reiterating racial hierarchy in the post-Civil Rights Era.”[footnote]Khiara M. Bridges, The Supreme Court, 2021 Term—Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23, 31 (2022).[/footnote] The recent state-level reforms should be understood against this backdrop as a reaction (albeit a limited one) to the yawning gap between the U.S. Supreme Court’s periodic pronouncements that racial exclusion in jury selection is “at war with our basic concepts of a democratic society and a representative government”[footnote]Smith v. Texas, 311 U.S. 128, 130 (1940).[/footnote] and the lived reality of its racial justice jurisprudence.[footnote]See Bridges, supra note 10, at 31 (characterizing the record as “ghastly”). But see Daniel S. Harawa, Lemonade: A Racial Justice Reframing of the Roberts Court’s Criminal Jurisprudence, 110 Calif. L. Rev. 681, 685 (2022) (“While racial justice advocates can rightly take a negative view of this line of cases, viewing them as lemons, this Article recasts the cases as tools in the fight for racial justice, exploring how these lemons can be turned into lemonade.”).[/footnote] This trend is noteworthy on its own, but equally important is how these major criminal procedure reforms are occurring. In Arizona and nearly all the other states that have adopted new jury selection regimes, state supreme courts have not waited for their legislatures to pass new statutes; nor, in the ordinary course of deciding appeals, did they construe state or federal constitutions to require these new procedures. Rather, state supreme courts have increasingly turned to rulemaking, wielding their traditional authority to control matters of procedure through the promulgation of court rules.[footnote]See infra Part II (discussing developments in various states); infra Part III (focusing on Arizona). California, which also developed its new rules through legislation, is the exception. See infra notes 165–180 and accompanying text.[/footnote] Opponents have criticized the recent reforms not just as poor policy but also as examples of judicial overreach. Legislators in Arizona, for example, accused the Arizona Supreme Court of usurping their authority to determine substantive law in the state.[footnote]See infra notes 312–322 and accompanying text (discussing Arizona’s H.B. 2413 and the legislative effort to reinstate peremptory strikes).[/footnote] But nothing about these state supreme courts’ recent assertions of rulemaking power or the critiques is particularly novel: At various times over the past century, state judiciaries and legislatures have been in dialogue (and sometimes open conflict) over how the rules of American criminal procedure ought to be authored.[footnote]See infra Part I.[/footnote] When thinking about what courts “do” nowadays—and, in particular, how they regulate criminal procedure—we have grown accustomed to privileging federal courts, federal constitutional doctrine, and the federal adjudicatory process. But for the vast majority of criminal defendants, rules promulgated by state supreme courts are often the primary force shaping not only jury selection but every aspect of their interaction with the adjudicatory system.[footnote]See, e.g., infra notes 19–23 (discussing the use of procedural rules to govern pretrial diversion and expungement of convictions).[/footnote] Indeed, in most jurisdictions in the United States, state supreme courts have long enjoyed broad authority under state constitutional law (sometimes supplemented by statutory delegations) to act as quasi-legislatures, drafting and promulgating procedural rules as they best see fit. Such rules govern everything from pretrial diversion programs[footnote]See State v. Leonardis, 375 A.2d 607, 614 (N.J. 1977) (enforcing N.J. Ct. R. 3:28).[/footnote] to the expungement of convictions,[footnote]Key v. State, 48 N.E.3d 333, 339–40 (Ind. Ct. App. 2015) (finding no conflict between a statutory expungement procedure and a court-promulgated procedural rule).[/footnote] and everything in between.[footnote]See, e.g., Alaska R. Crim. P. 43(c) (allowing courts to dismiss cases sua sponte “in furtherance of justice”); Haw. R. Penal P. 16(b)(1)(vii) (establishing a standard for pretrial disclosure of exculpatory evidence that omits the “materiality” requirement of Brady v. Maryland, 373 U.S. 83, 87 (1963)).[/footnote] Perhaps it is unsurprising, then, that scholars and activists are beginning to think about judicial rulemaking as a vehicle for achieving reforms that constitutional litigation or legislative advocacy have failed to deliver. In recent years, scholars focused on ending mass incarceration and reducing racial disparities in criminal justice have begun to recognize the importance of rulemaking, urging courts to promulgate new rules allowing judges to dismiss cases “in the interest of justice”[footnote]Valena E. Beety, Judicial Dismissal in the Interest of Justice, 80 Mo. L. Rev. 629, 633 (2015).[/footnote] or to expand discovery to allow easier detection of discriminatory policing patterns.[footnote]See Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 1041 (2021).[/footnote] State supreme courts have recently begun “to address the problems associated with fees, fines, and bail” through rulemaking, as Professor Jane S. Schacter has observed.[footnote]Jane S. Schacter, Glimpses of Representation-Reinforcement in State Courts, 36 Const. Comment. 349, 370 (2021); see also Leonard Sosnov, Brady Reconstructed: An Overdue Expansion of Rights and Remedies, 45 N.M. L. Rev. 171, 191 n.122 (2014) (discussing state discovery rules eliminating the “materiality” prong of the Brady inquiry).[/footnote] Most notably, Professor Andrew Manuel Crespo has meticulously excavated how the subconstitutional state law of criminal procedure, encompassing both statutory law and court-promulgated rules, supplies a “hidden law” that “establishes the mechanisms and legal frameworks through which prosecutorial . . . power is generated and deployed” in the context of plea bargaining.[footnote]Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 Colum. L. Rev. 1303, 1306 (2018).[/footnote] And it is not just scholars who are devoting renewed attention to the issue: In 2018, dissatisfaction over the Ohio Supreme Court’s failure to approve a proposed rule regarding plea bargaining spurred an insurgent candidate’s (successful) bid for a seat on the court.[footnote]See Bob Ratterman, Judicial Candidate Expresses Frustration With the Plea Bargain Process, J.-News, https://www.journal-news.com/news/local/judicial-candidate-expresses-frustration-with-the-plea-bargain-process/DEn1cDLn83Hz2m5GLIiJjJ/ [https://perma.cc/88SY-ZLQ5] (last updated July 7, 2018); see also Michael P. Donnelly, Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform, 54 Akron L. Rev. 223, 231–33 (2020) (discussing the author’s state supreme court campaign).[/footnote] But if the current wave of reform around the law of the jury is to continue or expand into other facets of criminal procedure, it is essential to take a more nuanced look at how judicial rulemaking actually operates. How many other state supreme courts could promulgate rules to overhaul the use of peremptory strikes, as Washington has done? Or eliminate them altogether, as in Arizona? What if an antagonistic legislature sought to undo such reforms?[footnote]See infra section IV.C (examining state law and historical practice regarding conflicts between the judiciary and the legislature over rulemaking).[/footnote] The answer: It depends![footnote]See infra Table 1 (displaying the authors’ assessment of judicial rulemaking power to unilaterally reform the use of peremptory strikes).[/footnote] In some jurisdictions, the state supreme court’s authority to promulgate rules is expressly set forth in a state constitution; in others, it has been delegated by the legislature; in a few, it does not exist at all.[footnote]See generally infra Part IV (highlighting the vast differences across jurisdictions).[/footnote] The rulemaking authority extends to all matters of civil and criminal procedure in many states; in a few jurisdictions, though, the state supreme court is barred from promulgating rules related to particular subject matter (e.g., juries).[footnote]See infra Appendix A (showing this to be true of states such as Arkansas).[/footnote] As at the federal level, state supreme courts can typically promulgate “procedural” (as opposed to “substantive”) rules, but states have adopted idiosyncratic approaches to assessing the dividing line, or overlap, between the two realms.[footnote]See infra Appendix A (surveying these differing approaches).[/footnote] And, perhaps most importantly, states have developed disparate approaches to resolving conflicts between the judiciary and the legislature: Rules trump statutes in some states, statutes trump rules in others, and in many jurisdictions the law is unclear.[footnote]See infra Part IV (discussing the ways in which states address such conflicts).[/footnote] This Article begins in Part I by placing the current explosion of rulemaking in historical perspective. A century ago, the legal profession’s leading luminaries and the ABA fought to assert the primacy of judicial rulemaking over legislative meddling, insisting that state supreme courts (re)assume their control over procedure.[footnote]See infra Part I.[/footnote] The crowning achievement of these efforts was Congress’s passage of the Rules Enabling Act in 1934, but an even more robust version of judicial rulemaking expanded in state courts throughout the early twentieth century, too.[footnote]See infra Part I.[/footnote] Often, rulemaking in the states looked very different than its federal counterpart: In the 1950s, the New Jersey Supreme Court declared the state legislature powerless to contradict its procedural rules, prompting prominent law reviews to devote full-length articles to the issue.[footnote]See Benjamin Kaplan & Warren J. Greene, The Legislature’s Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury , 65 Harv. L. Rev. 234, 239–40 (1951); Roscoe Pound, Procedure Under Rules of Court in New Jersey, 66 Harv. L. Rev. 28, 28 (1952) (responding to Kaplan & Greene, supra); see also A. Leo Levin & Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. Pa. L. Rev. 1, 24–29 (1958) (discussing Winberry v. Salisbury, 74 A.2d 406 (N.J. 1950)).[/footnote] In more recent decades, state supreme courts and legislatures have occasionally engaged in open battles over rulemaking, ranging from disputes over bail in Florida[footnote]See infra section IV.C.[/footnote] to “tort reform” in Arkansas.[footnote]See infra section IV.C.[/footnote] Far from a novel innovation, the recent spate of reforms to peremptory strikes falls within a long tradition of conflict over rulemaking and the control of American criminal procedure. Part II provides an assessment of the recent wave of state-level reforms to jury selection, a trend that contrasts sharply with the U.S. Supreme Court’s hands-off approach to the topic in recent decades. Beginning with the Washington Supreme Court’s promulgation of General Rule 37 in 2018, courts across the country have begun experimenting with various frameworks (or, in the case of Arizona, outright elimination of peremptory strikes) to better address racial exclusion, and more may soon follow suit.[footnote]See infra sections II.A–.B.[/footnote] As the Part explains, these efforts have built upon one another, with reformers and jurists looking to other jurisdictions as they have developed their own states’ models. This Article does not take a stance on the comparative merits of these reform efforts, but it does seek to surface a common feature of these projects: All have targeted the use of certain “race neutral” criteria in peremptory strikes, not just because such rationales might pretextually mask subjective bias but out of recognition that such exclusion can and does independently reinscribe racial subordination.[footnote]See infra section II.B.[/footnote] In displacing the (typically futile) search for an impermissible hidden purpose on the part of a strike’s proponent, the legal frameworks in these states now reject a central feature of Batson and our “colorblind” equal protection jurisprudence more generally.[footnote]But see Devon W. Carbado, Strict Scrutiny & the Black Body, 69 UCLA L. Rev. 2, 39–40 (2022) (“This atomizing, colorblind approach to race . . . is not race neutral but deeply racially invested in ignoring or explicitly dismissing contemporary manifestations of racial injustice . . . .”).[/footnote] The Article then zooms in, providing a detailed examination of how Arizona’s historic decision to give up on peremptory strikes came to pass. Part III offers a case study of judicial rulemaking in action, but it is also a case study of how a longstanding goal of racial justice advocates became law in a relatively improbable jurisdiction. Why did Arizona—with its staunchly conservative judiciary[footnote]See Hank Stephenson, Where Court Packing Is Already Happening, Politico Mag. (Oct. 12, 2020), https://www.politico.com/news/magazine/2020/10/12/where-court-packing-is-already-happening-428601 [https://perma.cc/A48D-E4FM] (“A body that had four conservatives and one liberal when [Arizona Governor Doug] Ducey took office now consisted of seven conservatives and zero liberals.”).[/footnote]—become the first to abolish peremptory strikes, a proposal most closely associated with Justice Thurgood Marshall?[footnote]Concurring in Batson v. Kentucky , Justice Marshall predicted that the decision would “not end the racial discrimination that peremptories inject into the jury-selection process.” 476 U.S. 79, 102–03 (1986) (Marshall, J., concurring). That goal, he argued, would only be “accomplished . . . by eliminating peremptory challenges entirely.” Id. at 103.[/footnote] As the Part explores, shortly after the tumultuous summer of 2020, when racial justice demonstrations prompted the governor to impose a statewide emergency curfew order, the Arizona Supreme Court had before it two dueling rule-change proposals related to jury selection. The first was a reform proposal, modeled after Washington and California’s measures; the second urged scrapping peremptory strikes altogether.[footnote]See infra section III.B.[/footnote] But over several months of debate, certain criticisms of the Washington-style reform proposal gained traction: With its aim of adapting Batson to account for “implicit, institutional, and unconscious biases”[footnote]Jodi Knobel Feuerhelm & Lawrence S. Matthew, Batson Working Grp., Petition app. A at 1, In re Petition to Amend the Rules of the Sup. Ct. of Ariz. to Adopt Rule 24—Jury Selection, No. R-21-0008 (Ariz. filed Jan. 8, 2021), https://www.azcourts.gov/DesktopModules/ActiveForums/viewer.aspx?portalid=0&moduleid=23621&attachmentid=9310 [https://perma.cc/L7KE-4SD3] [hereinafter BWG Proposal].[/footnote]—and its instruction to trial judges to determine whether “any reasonable person could view . . . race . . . as a[n] . . . unconscious factor” influencing a peremptory strike[footnote]Id. app. A at 2.[/footnote]—many judges came to see the Washington-style reform as “too woke.”[footnote]See infra section III.C (discussing the interviews with Arizona state judges during which this sentiment was revealed).[/footnote] Elimination of peremptories, which promised more efficient trials and no such awkward inquiries into attorneys’ biases, eventually became the more attractive option. Finally, in Part IV, the Article surveys the current lay of the land when it comes to state supreme courts’ rulemaking authority. While a comprehensive comparative analysis could fill a treatise, the Part focuses on peremptory strikes (and the possibility of other states following in the footsteps of Washington or Arizona) to explore where further reforms might be possible, and where they would stall. As the Part demonstrates, most state supreme courts currently have the power to substantially revamp how jury selection occurs, with several doing so not because their state constitutions require it but because such procedural reform would have a salutary effect on the administration of justice.[footnote]See infra Part IV.[/footnote] Somewhat fewer state supreme courts have the power to abolish peremptory strikes altogether, but Arizona is by no means exceptional: We assess that more than half of the country’s state supreme courts probably have such power.[footnote]See infra Table 1.[/footnote] The judiciary’s power to promulgate such rules in the first instance does not imply full supremacy over the legislature, however, so Part IV concludes by exploring how rule-based reforms might fare in the face of legislative pushback. A brief Conclusion considers the implications of the foregoing for criminal procedure reform moving forward, particularly in a moment when racial justice movements have centered ways in which “our criminal legal system itself . . . yields forms of domination and violence.”[footnote]Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778, 787 (2021).[/footnote] While the judicial rulemaking authority of state supreme courts has been (we argue) underappreciated and understudied, this Article fits within several bourgeoning literatures. First, we join a growing group of scholars who contend that state courts warrant greater attention than they typically receive.[footnote]See, e.g., Marin K. Levy, Packing and Unpacking State Courts, 61 Wm. & Mary L. Rev. 1121, 1132 (2020) (“[S]tate courts tend to be understudied in the academic literature . . . [perhaps because] they are challenging subjects of study.”); Michael C. Pollack, Courts Beyond Judging, 46 BYU L. Rev. 719, 725 (2021) (“[S]cholars have largely overlooked the need for a systematic understanding of state court judges beyond traditional judging . . . .”); Miriam Seifter, State Institutions and Democratic Opportunity, 72 Duke L.J. 275, 284 (2022) (urging greater attention to the important role of state courts in limiting attacks on majoritarian institutions); Adam B. Sopko, Catalyzing Judicial Federalism, 109 Va. L. Rev. Online 144, 158 (2023), https://virginialawreview.org/wp-content/uploads/2023/07/Sopko_Book.pdf [https://perma.cc/2BYY-ET3X] (arguing that, “[w]ith their policymaking powers, [state] courts can influence the ways the state’s justice system functions” to better safeguard rights); see also Jeffrey S. Sutton, 51 Imperfect Solutions 6 (2018) (“[A]n underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty.”); Goodwin Liu, State Courts and Constitutional Structure, 128 Yale L.J. 1304, 1310 (2019) (reviewing Sutton, supra).[/footnote] A focus on issues affecting state courts is both important in its own right and can usefully inform our thinking about analogous issues at the federal level.[footnote]See, e.g., William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2399–400 (2015) (exploring the diversity of state court approaches to originalism when interpreting state constitutions); Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 385 (2011) (urging greater use of state constitutional doctrine to resolve problems arising under the federal Constitution).[/footnote] Second, and relatedly, the Article’s focus on the intricacies of state-level rulemaking in particular is part of a shift away from larger constitutional-doctrinal or normative questions in criminal law scholarship and toward a focus on the criminal law’s real-world operation.[footnote]Stephanos Bibas, The Real-World Shift in Criminal Procedure, 93 J. Crim. L. & Criminology 789, 791–92 (2003) (book review) (noting that “the real-world approach” to criminal law scholarship “is coming into its own”); Benjamin Levin, Rethinking the Boundaries of “Criminal Justice”, 15 Ohio St. J. Crim. L. 619, 623 (2018) (book review) (“[A] range of scholars increasingly has shifted away from the normative question of justified criminalization . . . or even the descriptive question of statutory criminalization . . . to ask a bigger descriptive question—where is criminal law operating surreptitiously or what is the importance of under-examined aspects of the system?”); see also Crespo, supra note 23, at 1305–06 (describing the “blind spots” in criminal law scholarship due to the traditional focus on substantive and constitutional law).[/footnote] State courts are, of course, “where the overwhelming bulk of criminal prosecutions actually take place.”[footnote]Daniel Epps, Checks and Balances in the Criminal Law, 74 Vand. L. Rev. 1, 19 (2021); see also Nancy J. King & Michael Heise, Misdemeanor Appeals, 99 B.U. L. Rev. 1933, 1939–40 (2019) (estimating that there were “approximately 5.8 million misdemeanor convictions entered by state courts nationwide in 2016”); Megan Stevenson & Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. Rev. 731, 737 (2018) (estimating that 13.2 million misdemeanor cases are filed in the United States each year).[/footnote] And in this domain, beyond the dominance of the “two familiar legal pillars of the American criminal justice system—substantive and constitutional criminal law— . . . lies a third, unseen but essential body of law.”[footnote]Crespo, supra note 23, at 1305.[/footnote] This Article explores in more granular detail how a core feature of this subconstitutional law—state judicial rulemaking—operates when it comes to race, the jury, and criminal procedure today (and perhaps tomorrow).