How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism

Neal Devins - William & Mary Law School

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Over the past thirty years, state supreme courts have eclipsed the U.S. Supreme Court in shaping the meaning of constitutional values, both in their home states and throughout the nation. State supreme courts, for example, have interpreted their constitutions to provide broader rights protections than U.S. Supreme Court interpretations of the Federal Constitution on a range of issues—including school finance, disparate impact proofs of discrimination, voter registration laws, abortion funding, religious liberty protections, takings, same-sex sodomy, and a host of criminal procedure protections. In assessing the consequences of these and other decisions, academic commentators focus on the nationwide impact of state court rulings. For example, nationalistic measures have been employed in assessing whether state supreme court rulings on same-sex marriage have been effective or counterproductive.

In this Article, I challenge the use of nationalistic measures to assess state supreme court decision-making and advance a state-centered understanding of state constitutionalism. In large measure, my Article offers a positive account of what consequences state supreme court justices are likely to consider—explaining why it is that state justices typically have the incentive and capacity to think about the in-state (but not out-of-state) consequences of their decisions. At the same time, I also consider the ways in which a state supreme court justice can look to the experiences of other states when assessing in-state backlash risks.

My analysis proceeds in three parts. Part I highlights how it is that state constitutions are fundamentally different from the Federal Constitution and from each other. In so doing, Part I serves as a critique of academics who look to nationalistic norms in assessing state supreme court decision-making, especially the consequences of state court decisions. Part I also paves the way for subsequent discussion of whether state supreme courts take implementation concerns into account—looking at provisions of state constitutions governing direct democracy, judicial elections, and the power of state courts to sidestep issues by denying certiorari.

Part II shifts the focus to the question of whether state courts have either the incentive or the capacity to be consequentialists. In sorting these questions out, I make two claims. First, I argue that most state supreme court justices have the incentive and capacity to take backlash risks into account. Unlike the politically insulated U.S. Supreme Court, most state supreme courts are subject to a broad spectrum of democratic controls. Thirty-eight states have some form of judicial elections, twenty-four states allow for some type of voter-initiated constitutional amendment (including, of course, amendments to nullify state court decisions), and most states are subject to some other limitation on their ability to control which cases they will hear (including obligations to hear constitutional challenges to state law, the inability to throw out lawmaker challenges to state laws for lack of standing, and the obligation to issue advisory opinions). Empirical and anecdotal evidence make clear that these limitations, especially judicial elections, impact state supreme court decision-making. More than that, state court justices are well positioned to assess in-state (but not out-of-state) backlash risks. Unlike federal judges (whose predictions about the nationwide effects of their rulings would be little more than “a shot in the dark”), state justices have close ongoing relationships with their state’s political establishment. Among other things, state justices have often served as lawmakers or (elected) prosecutors before joining the court; states are smaller and more knowable political units than the federal government; and state justices are often embroiled in political disputes by virtue of judicial elections and limitations on docket control. With respect to out-of-state consequences, however, state justices are not well positioned to assess backlash risks across the nation.

Part II does more than highlight differences between federal and state courts. Part II also calls attention to dramatic differences among state supreme courts. Backlash risks and the capacity of state justices to assess in-state consequences vary dramatically from state to state—thus reflecting dramatic differences in state constitutional systems. Further complicating matters, different justices will value different consequences in varying ways—some but not others will care about national backlash; some but not others will care about a constitutional amendment nullifying their ruling; and some but not others will care about their reputation with state officials, academic and media elites, and bar and other interest groups. State courts, in other words, cannot be lumped together; instead, there are different state systems, different degrees of knowledge about those systems, and different preferences among justices in each of those systems. Notwithstanding these variations, state supreme courts can look to the experiences of other states in understanding the risks of some type of in-state backlash. When justices in other states lose reelection because of their rulings on the death penalty or when the decisions of other state courts on same-sex marriage are overridden by constitutional amendments, there is good reason for a justice to think about whether there are comparable risks in her state.

Part III links Parts I and II by considering the ways that state supreme court justices can assess in-state backlash risks by looking to the unique features of their own constitution, to the political norms of their states, and to the experiences of other states. Through a case study on same-sex marriage, I highlight how state courts, in fact, take into account both the design of their constitution and in-state political norms. I then explain how state supreme court justices can also access potential in-state backlash risks by considering the experiences of other states. Part III therefore highlights how state supreme courts are at once distinctive and part of a nationwide system and, in so doing, shows how state-centered constitutionalism can facilitate the shaping of constitutional values throughout the country.

To make the claims of Part III and the Article more concrete, here are my central findings about the seven state supreme courts that, from 1993 to 2009, interpreted their state constitutions to provide expansive protections to same-sex couples (same-sex marriage in California, Connecticut, Iowa, and Massachusetts; civil unions in New Jersey and Vermont; and the Hawaii Supreme Court’s call for strict scrutiny review of the state’s ban on same-sex marriage). The most salient characteristic shared by all seven courts is their retention schemes. None of the seven makes use of contested judicial elections. Five are among the eleven states whose justices need not run for reelection. Two (Massachusetts and New Jersey) are among the four states whose justices are not subject to reelection or reappointment; two (Vermont and Connecticut) are from the six states who make use of legislative or gubernatorial reappointments; one (Hawaii) is the only state that makes use of a judicial commission to reappoint justices. The remaining two (California and Iowa) are from states that make use of retention elections—elections where incumbent justices win around ninety-nine percent of the time.

With limited or no reelection pressure, state supreme courts that have played a pathbreaking role on same-sex marriage have far more discretion to vote their legal policy preferences than justices from states subject to significant reelection pressure. Moreover, with the notable exception of California, there is comparatively little risk of voters or legislators nullifying the constitutional rulings of these courts. Of the seven pathbreaker states, only one (California) allows voters to place constitutional amendment proposals on the ballot. For legislature-sponsored amendments only two (Iowa and Massachusetts) allow for an amendment to be sent to the voters with only majority (as opposed to supermajority) support from state lawmakers. Iowa and Massachusetts, however, are two of twelve states that require consideration of legislature-proposed constitutional amendments in two successive sessions. Iowa’s constitutional amendment rate of 0.36 amendments per year is tied with Rhode Island’s as the fifth lowest of all states; Massachusetts’s rate of 0.55 is eighth lowest.

In addition to override and retention risks, the ability of state supreme court justices to control their docket impacts whether a state court will play a pathbreaker role. Three of these states (Vermont, New Jersey, and Iowa) had no choice but to hear constitutional challenges to state law; the other four had discretion (although each of those states made use of somewhat different procedures). Against this backdrop, it is not surprising that the two states (Vermont and New Jersey) that took middle ground positions—finding for civil unions, not same-sex marriage—were among the three states without docket control.

The specific features of state constitutional systems have undoubtedly figured into the willingness of state supreme courts to play a pathbreaking role on same-sex marriage. In assessing potential backlash risks, however, state courts need not operate in a vacuum. State justices may be able to look to the experiences of other states in assessing in-state backlash risks. In this way, state courts can simultaneously focus their energies on in-state backlash risks while also looking beyond their borders and, in so doing, participate in a nationwide dialogue over the meaning of core constitutional values. On the issue of same-sex marriage, there is little question that state justices could look to out-of-state developments in assessing potential in-state backlash risks. In 1993, Hawaii could not look to any other state when it triggered the nationwide debate about same-sex marriage; in 2009, Iowa could look to the experiences of six other states when issuing its ruling on same-sex marriage. All of this highlights a rather obvious point: state courts can learn much from the experiences of other states to better inform their understanding of their own potential in-state consequences. In this way, state courts can participate in a nationwide dialogue about fundamental constitutional issues while still focusing on that which they know best—their home state. 


Copyright © 2010 Stanford Law Review.

Neal Devins is the Goodrich Professor of Law at William & Mary Law School.

This Legal Workshop Editorial is based on the following Law Review Article: Neal Devins, How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 STAN. L. REV. 1629 (2010).

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