A More Modest Court: The Ohio Supreme Court's Newfound Judicial Restraint

Abstract

The Ohio Supreme Court has changed significantly over the past six years. Significant turnover on the court has produced significant change in the court's approach to many legal issues, in particular the degree of deference shown to legislatively enacted policies. Whereas the court of the 1990s developed a reputation for aggressively intervening in controversial policy matters, the current court is far more restrained, consistently applying a presumption of constitutionality to legislative enactments. The current court is also largely unsympathetic to new and innovative tort claims or cases that seek judicial revision of existing rules or statutes to facilitate plaintiffs' actions. Evidence of the court's greater deference to the legislature can be found in many areas, including education, tort reform, and family law, among others. While the court appears less likely to invalidate legislative actions, it continues to scrutinize government actions to ensure they are constitutional. The court has also been drawn into contentious political battles, leading to charges of partisanship. While some have been quick to accuse the Ohio Supreme Court of embracing a conservative of pro-business legal agenda, a review of the court's most prominent and consequential decisions of the past several years does not appear to support such criticisms. The common thread in the Court's recent decisions is not a particular outcome, but a particular approach. In a broad number of cases, covering a wide range of areas, the court has followed its stated intention to provide greater deference to legislative enactments and resist creating new causes of action or expanding existing bases for tort liability. The result is a more modest state supreme court. This paper was prepared for the Federalist Society for Law and Policy Studies.