Recent federal immigration enforcement actions have focused on state and local courts, putting pressure on judicial leaders to find ways to insulate proceedings from infringement, chilling participation by litigants and witnesses alike. The court system is considering a number of options, including moving some proceedings online, restricting public access to docket information, requiring the use of judicial warrants and banning face coverings in courthouses.
State high courts have broad powers that allow them to make these and countless other important decisions about how the court system operates. This power, known as supervisory authority, is a major source of administrative power for state high courts, giving them the power to make operational decisions ranging from the seemingly mundane to the profound, such as establishing severe weather policy or implementing new computer systems. Indeed, as the example of immigration enforcement shows, this power can have serious implications for civil rights and freedoms.
In a recent law review article, I unpack this important but often overlooked aspect of state court practice, considering its origins, applications, boundaries, and implications for how we think about state high courts.
origin
Supervisory authority is a source of independent and flexible discretion based on the charters of all 50 states. Although the text and structure of the Constitution helps identify power, consideration of the institutional development of state courts in general and high courts in particular provides sufficient context for how courts exercise power today.
Over the course of the 20th century, state courts transformed from loose collections of courts subordinated primarily to the executive and legislative branches to centralized, co-equal agencies of government headed by a single court, often the Supreme Court. The reform movement was led by leading court theorists of the time, such as Roscoe Pound and Arthur Vanderbilt, and various interest groups, such as the American Association for Justice and the National Federation of Local Governments. By the late 20th century, most states had rewritten their constitutions and reimagined the structure of the judiciary as an independent, politically coequal branch with sufficient powers to oversee the administration of justice and enforce its prerogatives.
The structural changes included many features that we take for granted today, but were revolutionary at the time. These features include discretionary appellate jurisdiction, increased political independence through budget and personnel control, and greater oversight of the courts by the High Court. At the same time, the state’s political community was becoming increasingly skeptical of Congress after decades of patronage, economic collapse, fraud, and deep partisanship.
In response, states began to deliberately shift policy-making power from supposedly corrupt legislatures to more independent judiciaries. They accomplished this through changes such as giving the court plenary rulemaking authority and the power to issue advisory opinions. At a more abstract level, views about what courts do and how they should exercise their powers have also changed. During the 19th and 20th centuries, the perception of state high courts evolved from being seen as private dispute resolution institutions to governing bodies that necessarily participated in the policy-making process.
In summary, by the late 20th century, state judiciary agencies had been elevated to an important branch of state government and expanded beyond mere sentencing to oversee many policy areas, including pretrial services, family, and juvenile issues. The view of the judicial function, that is, the function of the high court, has also shifted from mere case resolution to national governance. To operate the new complex centralized structure, carry out these additional responsibilities, and give effect to the changed perceptions, courts needed more power. Reformers responded by giving the high court oversight powers.
application
What will the high court do with its oversight powers? Most applications, of course, may be dismissed as day-to-day court administration, such as creating a mask policy for court staff during a pandemic, determining the amount of snowfall necessary to close courthouses, or requiring judicial staff to undergo anti-bias training. However, as I have shown in my article, courts exercise the same power for more interesting and perhaps provocative uses. In recent years, high courts across the country have used their oversight powers to expand due process rights for criminal defendants, strengthen protections for tenants against aggressive landlords, and strengthen protections for everyone’s right to vote, among many other applications.
Perhaps most interestingly, oversight powers play a key role in what state supreme courts can do outside of rulings. We often think of courts only as arbiters. The power of the court is ex post facto as it must be initiated by the party filing the complaint, motion, etc. This, of course, is the logic behind federal jurisdiction. For better or for worse, Article III of the U.S. Constitution limits such power to litigation, that is, litigation or controversy. However, the state’s jurisdiction is less limited. State courts can and do act proactively, regardless of whether or not the parties or cases are pending, and are an important vehicle for such non-adjudicative action.
For example, in 2020, several high courts ordered a moratorium on eviction proceedings, preventing landlords from evicting tenants during a historic pandemic. Around the same time, the courts used their oversight powers to dismiss hundreds of thousands of district court cases involving criminal fines and fees, as part of a broader policy decision to address racial and class disparities in their respective court systems. And during the first Trump administration, a handful of Supreme Court orders limited immigration enforcement in the courts. In each of these instances, the High Court did not wait for litigants to seek relief, but rather acted on its own view of what the public interest demanded and what justice required, and its supervisory powers provided the means to do so.
However, supervisory powers may also be implicated in court decisions. Perhaps the most common use of power is to create ad hoc procedural rules that provide protections beyond constitutional standards, based on constitutional values (due process, speedy trial guarantees, protection against self-incrimination). For example, more than a dozen state high courts have held that certain confessions are admissible in criminal trials only if they are recorded by the court’s oversight authority based on the judge’s sense of justice, rather than as part of due process or other constitutional provisions. For example, the Minnesota Supreme Court explained that recording is a “reasonable and necessary safeguard essential to adequately protect the defendant’s right to representation, the right against self-incrimination, and ultimately the right to a fair trial.” Other courts that have adopted such rules have found that the rules “regulate the flow of evidence in state courts, including the nature of evidence produced and presented by law enforcement” and are necessary to “ensure the fair administration of justice.”
Similarly, courts have relied on their supervisory powers to expand their remedial powers and provide relief not otherwise available. For example, in overturning more than 20,000 criminal convictions in a single order, the Massachusetts Superior Court relied on the availability of a comprehensive form of relief based on its supervisory authority rather than on specific constitutional rights. In the wake of revelations of a decades-long tampering scandal at state pharmaceutical laboratories, the court concluded that its effects were so “far-reaching” that the judiciary “requires courts to exercise their oversight authority to reverse and vacate all criminal convictions tainted by government misconduct.”
Supervisory authority also plays an important role in the law development function of the High Court. This power is not subject to the same rules governing justice, stare decisis, preservation of issues, and finality that limit the scope of traditional forms of judicial review. Moreover, the content of the rules created by the supervisory authority is entirely discretionary. Its north star is ensuring that justice is done in the court system, and as injustice can take many forms, supervisory powers are correspondingly flexible and open-ended. By contrast, even flexible forms of constitutional jurisprudence (e.g., substantive and procedural due process, “evolving standards of decency”) still impose doctrinal and precedential limits on what is possible under particular rights provisions. The supervisory power knows no such obstacles. Supervisory powers thus facilitate an important legislative role that is central to the Supreme Court’s role.
Along these lines, high courts may use their oversight authority as a doctrinal sandbox to experiment with rules and standards before adopting them as a matter of constitutional law or as an alternative to legislative action. For example, the Alaska High Court relied on its oversight authority in a series of cases to develop various procedures to protect witnesses forced to testify and, if they proved satisfactory, to ultimately adopt those procedures as constitutional rules.
Supervisory powers are broad, flexible, and highly discretionary, but not unlimited. Perhaps the most powerful limitation on the high court’s oversight power comes from state constitutions. Over time and across states, the scope of the oversight authority of individual courts has expanded and contracted as changes in composition due to judicial elections, recalls, term limits, retirement, etc. Additionally, other branches have occasionally responded to the Court’s exercise of power by threatening to curb its activities. Similarly, the exercise of individual supervisory powers by the people or their representatives faces the threat of constitutional nullity.
what it means
Although state high courts have subtle but important powers that federal courts do not have, they are similarly subject to significant limitations unknown to federal courts. Indeed, some of the harshest criticisms of “judicial policymaking” are premised on institutional assumptions that generally do not apply at the state level, such as life tenure, anti-majoritarian insulation, and the finality of constitutional decisions. Of course, this is not to say that all applications of supervisory powers should be praised. Usage must be evaluated and criticized individually. However, the availability of this power, and its use as a substitute for traditional forms of judicial review, undermines many of the traditional legitimacy concerns associated with the broad exercise of judicial power by state high courts.
Unlike the federal system, in which courts are said to exercise judicial review in a binary manner, where laws are either constitutional or unconstitutional, oversight power suggests that states’ judicial powers are richer and more fine-grained. And while much of the supervisory power is focused on day-to-day court operations, it can and is used for other purposes. As our attention shifts to state judiciaries, this oversight power may serve as a reminder to consider how courts function and their place in state governance structures, rather than simply asking how to extract more rights from state constitutions.
Adam Sopko is an associate professor at the University of Colorado School of Law.
Recommended citation: Adam Sopko Description of State Supreme Court Supervisory PowersSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 27, 2026), https://statecourtreport.org/our-work/analysis-opinion/supervisory-power-state-supreme-courts-explained-0
