Courts

51 Imperfect Solutions: An Interview With Judge Jeffrey Sutton (Part 1)

When it comes to American constitutional law, state judges don't get no respect -- and this needs to change, as Judge Jeffrey Sutton argues in an important new book.

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Back in 2004, over at my first blog, Underneath Their Robes, I wrote a post entitled State Court Judges Are Icky. It was a humorous and satirical article poking fun at various state judges and the colorful kinds of trouble they had gotten themselves into, but it also reflected a substantive view: the snobbery within the legal profession that privileges federal courts and judges over their state counterparts, placing the former on a pedestal and the latter… somewhere less elevated.

That was a long time ago, 14 years ago this month, and now I must confess error. Today I hold state courts and state judges in high esteem. My new views come partly from the wisdom and knowledge I’ve acquired from covering the legal profession for almost a decade and a half, and partly from changed conditions — specifically, the impressive jurists added to state judiciaries in recent years, especially state high courts.

My enhanced understanding of state courts received reinforcement when I read 51 Imperfect Solutions: States and the Making of American Constitutional Law, an important new book by Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit. Judge Sutton has impeccable federal-side credentials: he clerked for the U.S. Supreme Court (for the late Justice Antonin Scalia), has been a federal judge for more than 15 years (appointed in 2003 by President George W. Bush), commands tremendous respect nationwide as a jurist, and is a top-shelf feeder judge. But in 51 Imperfect Solutions, he argues that when it comes to American constitutional law, state judges don’t get no respect — and that this needs to change, stat.

51 Imperfect Solutions is an insightful and thought-provoking new book, which I commend to you highly. To learn more about it, check out this write-up of my recent conversation with Judge Sutton (edited and condensed, according to standard practice for my author interviews).

DL: How would you describe the central argument of 51 Imperfect Solutions?

JS: Most books about constitutional law focus on the federal constitution and, when they talk about the States, they tend to focus on the negative role States have played in its development. I did not set out to contradict that story but to supplement it. The book tells stories about American constitutional law in which States play a positive role, or in some instances a nuanced role, in the development of state and federal constitutional law. Our preoccupation with the U.S. Supreme Court and the federal constitution often comes at the expense of state courts and state constitutions.

There are 51 constitutions and 51 high courts in this country. Anyone interested in fully understanding American constitutional law should pay attention to the roles of each set of constitutions and each set of courts. An underappreciation of state constitutional law has hurt state and federal law and the proper balance between state and federal courts.

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DL: Why is this a particularly interesting time to be talking about state courts?

JS: Americans today care deeply about our constitutional rights. But they disagree vigorously about what rights to protect. Taking state constitutions seriously allows a little more give and take, whether before the U.S. Supreme Court enters the picture or after. Efforts to obtain winner-take-all victories at the U.S. Supreme Court may be an unavoidable, and understandable, feature of American constitutional law. After all, what person and what interest group wouldn’t want its position on a constitutional right to apply in all 50 States? But no one wins them all. One message of the book is that a defeat at the U.S. Supreme Court is not the end of the road. Each State has its own constitution, which independently protects our core constitutional liberties. Just as we would scratch our head if an American basketball player opted not to take both shots after a two-shot foul, we should scratch our head when an American lawyer refuses to take a second shot awarded under the relevant state constitution.

The salience of the state courts also turns on something else: what the U.S. Supreme Court is doing at a given moment in time. The more rights the Court recognizes under the U.S. Constitution, the less room there is for state courts to innovate under their own constitutions. But the less the Court does, the more room there is for state courts to innovate. Today’s Court is not the Warren Court. Sure, it still identifies new rights from time to time. But our current Court leaves plenty of room for state constitutions and state courts to protect liberty and property rights that federal law does not protect.

DL: You explore the dialogue between federal and state courts by looking at four issues: school funding, the exclusionary rule, compelled sterilization, and flag salutes. How did you settle on these topics?

JS: The eugenics and school funding chapters offer good examples of stories that flip the script. At the height of the eugenics movement, many States enacted laws that allowed for the involuntary sterilization of individuals with disabilities and individuals convicted of certain crimes. When individuals challenged the validity of these laws, it was the state courts, not the U.S. Supreme Court, that offered the greatest protections from these laws—sometimes under the U.S. Constitution and quite often under their own state constitutions. By contrast, in Buck v. Bell (1927), the U.S. Supreme Court in an 8-1 decision written by Justice Oliver Wendell Holmes, and joined by Chief Justice Taft and Justice Brandeis, rejected the claim under the Due Process and Equal Protection Clauses of the U.S. Constitution.

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The school funding story follows a similar trail. In San Antonio Independent School District v. Rodriguez (1973), the Supreme Court rejected the claim that there’s a fundamental right to education under the Fourteenth Amendment. But in the decades since, the state courts and state legislatures have filled many of the gaps left by the decision.

The exclusionary rule story is more complicated. At one level, the creation of a national exclusionary rule in Mapp v. Ohio (1961) looked like a ringing victory for criminal defendants and a 75-year federalism story in which a state and federal court dialogue led to a national rule. But the years since 1961 have shown that Mapp created benefits and burdens for criminal defendants. That story continues to unfold to this day, prompting an ongoing conversation between the state and federal courts under the state and federal constitutions. The story puts the lie to the assumption that state judges, 90 percent of whom are elected, cannot be counted on to protect counter-majoritarian rights, even the most counter-majoritarian of rights: the protections given to those accused of crime.

When it comes to constitutional debates about compelled flag salutes in the late 1930s, all of the courts (including the U.S. Supreme Court) failed at first, perhaps due to the intense American patriotism that accompanied the unfolding world war. But by the early 1940s, the state and federal courts began to see the peril to civil liberties in these laws. At the time of Justice Jackson’s stirring defense of individual rights in West Virginia State Board of Education v. Barnette (1943), maybe the second most significant individual rights decision after Brown v. Board of Education, the federal and state courts had corrected course. If you read some of the state court decisions from this time, you will see they are just as inspiring and often just as powerfully written as Justice Jackson’s opinion.

Judge Jeffrey S. Sutton (©Mayhew & Peper Photographers)

DL: You mention it a bit in the epilogue, but what thoughts would you offer on the interaction between federal and state courts when it comes to same-sex marriage — an issue that you also tackled as a judge, writing the Sixth Circuit opinion in the case that eventually went to the Supreme Court as Obergefell v. Hodges (2015)?

JS: There is no Obergefell without the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Public Health (2003). If ever there were a federalism story, this is it. In Baker v. Nelson (1972), a unanimous Supreme Court issued a summary affirmance of a Minnesota Supreme Court decision holding that a state law limiting marriage to persons of the opposite sex did not violate the U.S. Constitution. If change was going to happen on this issue, it would have to come from the States: state courts, state legislatures, or state constitutional amendments.

And it did. Partial victories for gay marriage first came in the Hawaii and Vermont state courts under their own constitutions. Then, in Goodridge, in an opinion written by Chief Justice Margaret Marshall, the Massachusetts High Court held that denying marriage licenses to same-sex couples violated the Massachusetts Constitution. In the absence of Goodridge, there is no Obergefell.

In this story and every other in the book, the question is not who is right or wrong. It’s who decides—the most neglected question in American constitutional law. As the book reveals, sometimes the best answer to the who-decides question is the state courts under their state constitutions.

DL: Can you identify an issue or issues, not among the main ones discussed in your book, where you think there’s interesting federal-state dialogue going on today?

JS: When I give talks about the book, I often finish by looking at the most recent Term of the U.S. Supreme Court and the ways in which the state courts could continue to play a role with respect to some of the rights addressed in the Court’s cases. In the most recent Term, the Court continued to stay on the sidelines when it comes to political gerrymandering. The effort to address this issue at the federal constitutional level has been going on for a while, and so far the Court has not recognized a right against political gerrymandering under the Fourteenth Amendment, including most recently in Gill v. Whitford. That leaves plenty of room for the States to operate. I suspect you will continue to see efforts to address this issue at the state level, whether through state court decisions under their own constitutions, legislation, or statewide initiatives.

Carpenter v. United States offers a different way in which the state constitutions can play a role. The decision addressed whether the government’s acquisition of cell-site records amounted to a search that required a warrant under the Fourth Amendment of the U.S. Constitution. New technology generates plenty of new debates about constitutional freedoms. Carpenter nationalizes the right and cuts back on the third-party doctrine in the process. But it does not occupy the field, leaving many gaps for state courts to fill in the years ahead. In point of fact, many state courts had rejected the third-party doctrine in this context under their state constitutions long before Carpenter.

Debates about administrative deference—often referred to as Chevron deference, given our proclivity to adopt federal lingo—offer a last example. One would have to be hiding under a rock not to know that the courts, the academy, and many others have been considering anew the separation-of-powers implications of allowing executive branch agencies to obtain deference over their interpretations of statutes. Some States adopt a Chevron–like model, and some don’t. Many of the States on the pro-deference side of the line have reconsidered that position in recent years. State courts are just as free to participate in this debate as the federal courts—and sometimes even lead the way in doing so.

DL: Most of the stories you tell in the book are ones where state and federal courts advance an issue together or engage in dialogue over it. Are there situations you can think of where a robust interpretation of a state constitutional provision could conflict with a federal constitutional right? For me, the area of religion comes to mind.

JS: That possibility came to fruition in Trinity Lutheran v. Comer (2017). The Missouri Constitution erects a steep wall between church and state, which is why the state agency in the case denied a church-controlled preschool the ability to participate in a statewide grant program to upgrade its playground. Trinity Lutheran held that the denial violated the church’s rights under the Free Exercise Clause of the First Amendment. But the case left some questions unanswered. We will continue to see this tension, I suspect, between (1) state constitutional provisions calling for church-state separation and (2) federal constitutional provisions and federal statutes, like RFRA and RLUIPA, that provide for protection of religious freedom. That debate is not over.

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And this interview isn’t either. In the next and final installment, we’ll hear from Judge Sutton about the relative ease of amending state constitutions versus the federal constitution; how the state-federal interplay relates to the debate in constitutional interpretation between originalists and living constitutionalists; and the problem of “lockstepping,” in which state courts interpret their state constitutions in reflexive imitation of federal courts’ interpretation of the U.S. Constitution. Thanks to Judge Sutton for his time and his insights!

UPDATE (8/2/2018, 12 p.m.): You can read the conclusion of our conversation here, 51 Imperfect Solutions: An Interview With Judge Jeffrey Sutton (Part 2).

(Disclosure: I received a review copy of this book.)

51 Imperfect Solutions [Amazon (affiliate link)]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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