The New Hampshire Supreme Court and the Collapse of Constitutional Review

The New Hampshire Supreme Court and the Collapse of Constitutional Review
By Jeffrey Thomas Clay

The New Hampshire Supreme Court routinely speaks of constitutional values. In practice, it increasingly avoids enforcing them.

Nowhere is this more apparent than in its handling of transparency, open government, and Article 8 of the New Hampshire Constitution. The Court has perfected a technique that allows it to appear respectful of constitutional rights while ensuring those rights remain largely unenforceable.

Article 8 Without Teeth

The Court regularly affirms that Article 8 guarantees public access to government proceedings and records. It also regularly ensures that this guarantee produces no remedy.

Through doctrines of nonjusticiability, procedural dismissal, and non-precedential summary orders, the Court has transformed Article 8 into a rhetorical ornament—something to cite, but not to apply.

When confronted with cases that would require the Court to meaningfully review government secrecy or judicial misconduct, it retreats. It invokes political question doctrine. It defers to internal rules. It resolves cases without precedential opinions.

The result is predictable: no accountability, no guidance, no deterrence.

The Abuse of Non-Precedential Orders

The New Hampshire Supreme Court has increasingly relied on unpublished, non-precedential orders to dispose of serious constitutional claims. These orders are said to lack precedential value—yet they are final. They end cases. They foreclose relief.

This is judicial power without judicial responsibility.

If an order is strong enough to extinguish constitutional claims, it is strong enough to be explained publicly and defended doctrinally. Anything less undermines the legitimacy of constitutional adjudication itself.

Nonjusticiability as Escape Hatch

The Court has also weaponized nonjusticiability to avoid reviewing the conduct of co-equal branches—and, at times, itself. It has declared that certain transparency questions cannot be reviewed, while simultaneously insisting that constitutional openness remains the law.

This contradiction is not theoretical. It has real consequences. A right that cannot be enforced is not a right. It is a slogan.

A Court That Polices Everyone But Itself

Perhaps most troubling is the Court’s approach to judicial transparency. By exempting its own non-adjudicatory conduct from meaningful scrutiny, the Court has placed itself in a constitutionally suspect position: arbiter of openness for all others, answerable to none.

That is not what Article 8 contemplates. And it is not what a constitutional republic requires.

The Quiet Erosion of Trust

Courts derive their authority not from force, but from trust. When the highest court in the state repeatedly avoids constitutional review, declines to explain itself, and shields institutional actors from accountability, that trust erodes.

The danger is not public criticism. The danger is public resignation—the belief that courts no longer protect constitutional rights, but manage their decline.

New Hampshire deserves better than a Constitution that speaks loudly and a Supreme Court that whispers.