Constitutionally Unconstitutional? When State Legislatures Pass Laws Contrary to Supreme Court Precedent

Laura Bakst
Vol. 53
Page 63

State legislatures wield considerable power as a check on the federal government. While exceeding a federally-imposed floor on protected rights or declining to cooperate with federal priorities fall within the scope of appropriate state power, the line becomes murkier when state legislatures seek to pass laws that conflict with Supreme Court precedent. While scholars have addressed this issue in the context of the federal legislature, whether state legislatures have the power to pass laws in contravention of Supreme Court decisions remains undiscussed. This Essay answers that question. Part I describes why, based on constitutional law and history, it is beyond state legislative power to pass unconstitutional laws. Part II focuses on the costs of such actions, using abortion bans and legislative resistance to Brown v. Board as examples. Finally, Part III discusses the limited remedies available, given legislative and sovereign immunity and restrictions on taxpayer standing.

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