Lorri Montgomery
Director of Communications
National Center for State Courts


For Scalia Successor, Will President Obama Look to the State Court System?

Williamsburg, Va. (February 15, 2016) —The successor to Justice Antonin Scalia will be the 113th justice to serve on the United States Supreme Court. About 44 percent of those justices—49 of the 112 who have served—arrived at the high court with either state trial or state appellate court experience. But since 2008, with the retirement of Justice David H. Souter, the U.S. Supreme Court has been bereft of even a single member who brings jurisprudential experience from America’s state courts. 

State courts account for more than 95 percent of all cases filed in America.  According to SCOTUSBlog 20 percent of the cases granted cert by the highest court in the 2014-2015 term originated in the state court system.

A quick review of the professional and biographical background of the 55 members of the U.S. Conference of Chief Justices (CCJ) — the association of the top judicial leaders from the 50 states, D.C. and the U.S. territories — reveals the following:

  • 50 percent brought state trial court experience to their current post, and 75 percent brought both state trial court and state appellate court experience
  • 17 of the 55 are women
  • nine served as law professors, while eight served as Attorney General of their state
  • members of CCJ possess law degrees that represent virtually every highly rated law school in the country

This turn away from the state courts as a source of jurists for the nation’s highest court is a relatively recent phenomenon.  Between 1789 and 2008, the highest court in the land always included at least one member with judicial experience from the state courts.  Ten justices have served at both the state trial and appellate levels prior to their elevation to the U.S. Supreme Court.

However, in the last 60 years, three justices — Souter and Justices William J. Brennan, Jr. and Sandra Day O’Connor — have been confirmed with state court experience in their qualification sets.  In the 50 years prior, nine of the 32 justices confirmed brought state court experience to the nation’s court of last resort.


The NCSC Backgrounder is designed to provide the media with statistics and facts related to current issues of interest.

The National Center for State Courts, headquartered in Williamsburg, Va., is a nonprofit organization dedicated to improving the administration of justice by providing leadership and service to the state courts. Founded in 1971 by the Conference of Chief Justices and Chief Justice of the United States Warren E. Burger, NCSC provides education, training, technology, management, and research services to the nation's state courts.