Abstract
State courts wield the authority to elevate state constitutional protections above those afforded by the U.S. Constitution. That power is great—so great that some legislatures have intervened in constitutional adjudication, purportedly to undermine forum shopping and check a single judge’s influence. Accordingly, North Carolina and Tennessee require that three-judge trial courts hear constitutional challenges to state laws. These courts echo twentieth-century congressional efforts to trim federal courts’ equitable jurisdiction. They also present new and familiar drawbacks spawned by their federal ancestors.
This Note examines these new constitutional courts through several lenses: their historical context, political development, advantages, and drawbacks. Although both current forms of the three-judge state constitutional court are flawed, this Note argues that safeguarding state constitutional adjudication is a worthy endeavor. Indeed, several reforms to current three-judge courts—including random selection and efficiency measures—could maximize these courts’ advantages and mitigate their shortcomings. But, overall, these courts present a legitimate opportunity to balance the interests of legislatures and litigants in constitutional adjudication.
Citation
Matt Queen,
The Return of Three-Judge Constitutional Courts,
73 Duke Law Journal
1577-1614
(2024)
Available at: https://scholarship.law.duke.edu/dlj/vol73/iss7/4