There's more than one 'highest' court in America

American schoolchildren are growing up with a badly oversimplified lesson about their own government. They are learning that the U.S. Supreme Court is the nation's "highest court," a label that erroneously diminishes the power of state supreme courts. Correcting this understanding goes beyond pedagogical accuracy — it is essential for our democracy.

As future voters, students should gain a proper understanding of the impact of their state supreme courts, rather than learning to aggrandize the U.S. Supreme Court alone.

While Washington alone determines U.S. Supreme Court seats, voters elect state supreme court justices in nearly half the states. In other states, citizens can boot justices by voting not to retain them. In Illinois, state Chief Justice Anne Burke recently announced her retirement, and the Nov. 8 elections will decide which party controls the state supreme court.

Coming on the heels of the demise of Roe v. Wade, the new school year — and a new U.S. Supreme Court term beginning early next month — provide the perfect moment to reassess how teachers and parents characterize the Supreme Court and other courts in the classroom and beyond.

The truth is there is not a single "highest court" in the United States — there are dozens of them. The U.S. Supreme Court is indeed the highest court for the interpretation of federal law, but each state's supreme court pronounces the final word on state law. If a state supreme court recognizes a right under its own state constitution — say the right to abortion access or protection against solitary confinement — the U.S. Supreme Court has virtually no power to step in.

State supreme courts therefore command a sphere of judicial power that no other court can countermand. In a case about state constitutional law, a state supreme court is in effect "higher" than the U.S. Supreme Court.

As California Supreme Court Justice Goodwin Liu said in a lecture, "The crucial point is that state courts, as the ultimate arbiters of state law, have the prerogative and duty to interpret their state constitutions independently" of the U.S. Supreme Court. State supreme courts "often do give respectful consideration to relevant Supreme Court decisions, just as they often give respectful consideration to relevant decisions of sister states," Liu said, but each state supreme court gets the final word on its own law.

Most Americans likely hear the "highest court" idea for the first time as children, and it's a hard notion to shake, even in adulthood. In fact, while writing this, I realized that even I have written law review articles calling the U.S. Supreme Court "the high court" rather than one of many high courts.

Teaching the truth about state court power is more important now than ever. The dismantling of Roe and many other recent decisions on topics ranging from voting rights to excessive force by police makes it very likely that the U.S. Supreme Court will scale back or eliminate long-standing rights that it ultimately controls — rights under the U.S. Constitution.

In fact, conservatives are projected to retain a Supreme Court majority for 30 years. In contrast, judicial turnover in state supreme courts is far more common, in both appointment states and election states. No state other than Rhode Island grants a lifetime appointment to its supreme court justices. On Nov. 8, voters in 30 states including Illinois will decide state supreme court seats in election or retention votes. State courts therefore will figure ever more prominently in the civil rights battles of the future as advocates seek to restore under state constitutional law rights lost under federal law.

To be clear, the rule of law depends on accepting the U.S. Supreme Court's rulings on federal law, just as it depends on accepting state court orders on state law. In addition, the Constitution dictates that state laws must yield in the rare instances when they conflict with federal laws. Giving state courts their due does not mean minimizing, much less defying, the U.S. Supreme Court in cases where it indeed acts as the highest authority — cases interpreting federal law.

But the U.S. Supreme Court itself acknowledges the rightful independence of state supreme courts. Just last year, in Jones v. Mississippi, a case in which I failed to persuade the court to vacate my client's sentence of juvenile life without parole under the Eighth Amendment, Justice Brett Kavanaugh wrote for the majority that the court's holding "does not preclude the States from imposing additional sentencing limits."