Catalyzing Judicial Federalism

*Staff Attorney, State Democracy Research Initiative at University of Wisconsin Law School. Thanks to Michael Pollack, Eric Ruben, and Bob Williams for helpful comments. Many thanks also to the meticulous and conscientious editors of the Virginia Law Review, especially Bridget Carmody, Michael Martinez, and Meg Pritchard.Show More

Introduction

In response to a U.S. Supreme Court that is retrenching many important civil rights, some advocates are turning to state courts and constitutions as alternative means of protection.¹ 1.See, e.g., Riley Brennan, ACLU Staffs Up for New Initiative: ‘State Supreme Courts Are More Important Now Than Ever,’ ALM Law.com (May 2, 2023, 11:29 AM), https://www.law.com/2023/05/02/aclu-staffs-up-for-new-initiative-state-supreme-courts-are-more-important-now-than-ever [https://perma.cc/MN9H-9YRP]; Amy Myrick & Tamar Eisen, Building Protections for Reproductive Autonomy in State Constitutions, Ms. Mag. (May 24, 2022), https://msmagazine.com/2022/05/24/state-constitution-courts-abortion-rights/ [https://perma.cc/CJ8A-A5Q9] (“A more expansive vision for reproductive autonomy is necessary—and state courts can lead the way.”).Show More The Court’s regression follows a recent ideological change, a jurisprudential turn towards originalism and a long-standing normalization of judicial supremacy.² 2.See, e.g., David Cole, Egregiously Wrong: The Supreme Court’s Unprecedented Turn, N.Y. Rev. Books (Aug. 18, 2022), https://www.nybooks.com/articles/2022/08/18/egregious‌ly-wrong-the-supreme-courts-unprecedented-turn-david-cole/ [https://perma.cc/2CMZ-KV‌4F]; Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F. 97, 110–11 (2022); Noah Feldman, Opinion, Supreme Court ‘Originalists’ Are Flying a False Flag, Bloomberg (July 17, 2022, 7:00 AM), https://www.bloomberg.com/opinion/articles/2022-07-17/supre‌me-court-s-conservative-originalists-are-flying-a-false-flag#xj4y7vzkg [https://perma.cc/FZM8-G2FG] (arguing that the Court relies on selective originalism to “rationalize its activism”).Show More For some, transplanting legal strategies from federal to state courts risks bringing this old soil with it.³ 3.See, e.g., Christopher Jon Sprigman, Congress’s Article III Power and The Process of Constitutional Change, 95 N.Y.U. L. Rev. 1778, 1833 (2020) (observing that arguments in favor of placing “a lot of faith in state courts” as an alternative to federal courts “are especially weak” and recreate judicial supremacy); Joseph Fishkin, Courts and Constitutional Political Economy, LPE Project (July 24, 2021), https://lpeproject.org/blog/courts-and-constitutional-political-economy/ [https://perma.cc/M6AN-8VZF] (arguing that “[w]e need the courts, but we also need to understand that the courts are not our friends—and are unlikely ever to be,” and cautioning against placing our hopes in them); Zachary Clopton, Commentary, Judges Will Not Save Us. Pushing for Truly Democratic Solutions Will, Chi. Trib. (Aug. 24, 2022, 1:37 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-state-courts-constitution-rights-judicial-supremacy-20220824-ig2eravofbb5rgh3k4ckzdw52a-story.html [https://perma.cc/ZKD9-EFJR] (suggesting excessive reliance on state courts “feeds into the notion of judicial supremacy that created these problems in the first place”).Show More That is, a pivot to the states risks perpetuating these pathologies and recreating at the state level the same regressive norms and jurisprudence that precipitated the turn in federal courts in the first place.

In this brief Essay, I explore two aspects of this view. First, there are good reasons to believe originalism will not achieve the traction among state supreme courts that it currently enjoys at the U.S. Supreme Court. Briefly stated, several of the theory’s bugs and features likely disincentivize its adoption by most state supreme courts. Second, the renewed interest in state courts provides advocates with an opportunity to protect their clients and advance their causes in ways that do not necessarily require the aggressive forms of judicial review that seem characteristic of federal constitutional culture. State-level institutions offer means to protect important rights and liberties that widen the lens beyond a myopic focus on constitutional litigation. In this Essay, I briefly highlight three of these pathways: direct democracy, state courts’ non-adjudicative powers, and the common law. To be sure, expansive constitutional protection via judicial interpretation may be necessary for certain rights in certain contexts. But for advocates turning to state-level institutions, that should not necessarily be the default rule. Rather, a meaningful turn to the states should draw on the broader constellation of tools for protecting rights available at the state level that may be more effective and flexible than the predominant federal approach.

1.  See, e.g., Riley Brennan, ACLU Staffs Up for New Initiative: ‘State Supreme Courts Are More Important Now Than Ever,’ ALM Law.com (May 2, 2023, 11:29 AM), https://www.law.com/2023/05/02/aclu-staffs-up-for-new-initiative-state-supreme-courts-are-more-important-now-than-ever [https://perma.cc/MN9H-9YRP]; Amy Myrick & Tamar Eisen, Building Protections for Reproductive Autonomy in State Constitutions, Ms. Mag
   

   .

   (May 24, 2022), https://msmagazine.com/2022/05/24/state-constitution-courts-abortion-rights/ [https://perma.cc/CJ8A-A5Q9] (“A more expansive vision for reproductive autonomy is necessary—and state courts can lead the way.”). ↑

2.  See, e.g., David Cole, Egregiously Wrong: The Supreme Court’s Unprecedented Turn, N.Y. Rev. Books (Aug. 18, 2022), https://www.nybooks.com/articles/2022/08/18/egregious‌ly-wrong-the-supreme-courts-unprecedented-turn-david-cole/ [https://perma.cc/2CMZ-KV‌4F]; Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F
   

   .

   97, 110–11 (2022); Noah Feldman, Opinion, Supreme Court ‘Originalists’ Are Flying a False Flag, Bloomberg (July 17, 2022, 7:00 AM), https://www.bloomberg.com/opinion/articles/2022-07-17/supre‌me-court-s-conservative-originalists-are-flying-a-false-flag#xj4y7vzkg [https://perma.cc/FZM8-G2FG] (arguing that the Court relies on selective originalism to “rationalize its activism”). ↑

3.  See, e.g., Christopher Jon Sprigman, Congress’s Article III Power and The Process of Constitutional Change, 95 N.Y.U. L. Rev. 1778, 1833 (2020) (observing that arguments in favor of placing “a lot of faith in state courts” as an alternative to federal courts “are especially weak” and recreate judicial supremacy); Joseph Fishkin, Courts and Constitutional Political Economy, LPE Project (July 24, 2021), https://lpeproject.org/blog/courts-and-constitutional-political-economy/ [https://perma.cc/M6AN-8VZF] (arguing that “[w]e need the courts, but we also need to understand that the courts are not our friends—and are unlikely ever to be,” and cautioning against placing our hopes in them); Zachary Clopton, Commentary, Judges Will Not Save Us. Pushing for Truly Democratic Solutions Will, Chi. Trib. (Aug. 24, 2022, 1:37 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-state-courts-constitution-rights-judicial-supremacy-20220824-ig2eravofbb5rgh3k4ckzdw52a-story.html [https://perma.cc/ZKD9-EFJR] (suggesting excessive reliance on state courts “feeds into the notion of judicial supremacy that created these problems in the first place”). ↑