51 Imperfect Solutions: An Interview With Judge Jeffrey Sutton (Part 2)

If you’re looking for some worthwhile reading to help get you through the dog days of summer, I have a suggestion: 51 Imperfect Solutions: States and the Making of American Constitutional Law, by Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit. It might not seem like a typical beach book, but 51 Imperfect Solutions is an interesting and lively read that will change the way you think about American constitutional law.

I recently had the pleasure of interviewing Judge Sutton about his book. In this second part of our two-part interview (read the first part here), we talk about amending state constitutions versus the federal constitution, originalism versus living constitutionalism, and the growing prestige of state judiciaries.

DL: State constitutions are generally much easier to amend than the federal constitution, as you discuss in the book — sometimes state constitutions can be amended by referendum, for example. What implications does this have for the role of state courts in constitutional interpretation?

JS: The ease of amending state constitutions creates benefits and burdens. It can be healthy because it allows shifting societal norms to be reflected quickly in state constitutions. That’s useful. We don’t want dead-hand control; we want our state and federal charters to reflect the world as it is. That corrects the central lingering defect in the U.S. Constitution—the difficulty of amending it—which puts so much pressure on the federal courts to bend the language of the U.S. Constitution to account for changes in society.

The downside is that the state amendment process—frequently allowed by a mere 51 percent vote of the citizens—facilitates too many amendments. Some state constitutions have so many provisions that they look like Napoleonic codes or, for that matter, yard sales—filled with lots of items that never should have been adopted in the first place. If you constitutionalize everything, you run the risk of constitutionalizing nothing.

If I had my druthers, I’d make the U.S. Constitution easier to amend and the state constitutions harder to amend. But don’t hold your breath.

DL: You write about the problem of “lockstepping,” when state courts interpret their state constitutions “in reflexive imitation of the federal courts’ interpretation of the Federal Constitution.” What do you think drives this? Laziness? A sense that following federal courts can confer greater legitimacy on state courts?

JS: There are a lot of chickens and eggs here. One factor is that state constitutional law is not widely taught. Legal education focuses on the federal guarantees and the resulting federal doctrine—making it unsurprising that state judges, who receive the same legal education as everyone else, look first to the federal cases and doctrine. It’s the language they know. The same is true of the typical lawyer. He or she is going to think about these problems first and foremost through the lens of the federal cases and the federal doctrine.

Some state courts have freed themselves from lockstepping, though it did not happen overnight. Thanks to the work of Justice Hans Linde, Oregon constitutional law now dominates the discussion in constitutional debates in the Oregon state courts. But for the most part, state courts seem to start with the presumption that federal constitutional law will control both federal and state constitutional questions. That is a high-risk approach. Presumptions become destiny in the law—and that is just what has happened in many state courts.

When I think of the times when state courts have charted their own paths in construing their constitutional guarantees, it is often because the lawyers identified something unique in the State’s constitution or its history or culture that warranted independent treatment. Good lawyering (and a little historical research) can affect outcomes.

DL: You argue that state courts should play a larger role in shaping constitutional law, but you don’t take sides between originalism or living constitutionalism as methods of constitutional interpretation. But how would you respond to originalists who argue that state high courts can be activist — see, e.g., Goodridge, or various school-funding or fair-housing rulings from around the country over the years — and that the last thing we want to do is encourage state courts to take greater initiative?

JS: This is a big country. And there needs to be room for the many people in it to hold different views about policy and different views about the role of the courts in dealing with change. I didn’t write the book for originalists or living constitutionalists or pragmatists—or for that matter for liberals or conservatives. Both Justice Brennan and Justice Scalia believed that the States have considerable authority to take their own paths in protecting state constitutional rights. In permitting these independent paths, I would urge people to have the courage of their convictions in making arguments about the underlying policy debates and the role of the courts in addressing them—then let the chips fall where they may. If the people of a given State think their court has done too little or too much, they can correct course either by amending their constitution (which is much easier to do than at the federal level) or changing the composition of their high court (which also is much easier to do than at the federal level).

Just as there are federal constitutional decisions of all stripes at the U.S. Supreme Court, it shouldn’t surprise anyone when similar patterns repeat themselves at the state courts. The key difference is that the stakes are lower in the state courts, and vigorous independent state constitutionalism permits the U.S. Supreme Court to learn from the experiences of the state courts. Just as we can all agree that laboratories of policymaking experimentation through our state legislatures have been a beneficial attribute of American federalism, so we should all agree that laboratories of constitutional interpretation at the state level can have comparable live-and-learn benefits. State constitutional law and federal constitutional law each benefit in the process. Originalist decisions at the state court level may influence originalist justices on the U.S. Supreme Court, just as state living-constitutionalist and pragmatic decisions can influence like-minded federal justices.

DL: You argue in the book against focusing on federal courts to the neglect of state courts. I think it’s fair to say that within the legal profession, there’s a sort of snobbery that privileges federal courts and judges above their state counterparts. Would you agree with this observation, and if so, what do you think has caused this?

JSS: Prestige follows power. The power of the U.S. Supreme Court has no analogue at the state level. Decisions of the U.S. Supreme Court can prompt a civil war, bring an end to Jim Crow, or decide a presidential election. That’s not something state courts usually can do.

Legal scholarship and media attention follow power as well. We live in a world of winner-take-all debates at the U.S. Supreme Court. That’s an unavoidable legacy of the Warren Court. If you’re an interest group, why wouldn’t federal litigation be the number-one play in your playbook? You can get a single decision that constitutionalizes the issue and sidelines your opponent.

All of this explains why June of each year, when the U.S. Supreme Court hands down most of its significant decisions, can be the happiest month for some, the cruelest month for others. But there are many months of the year and many other courts (and constitutions) from which to seek relief—even if they do not offer the prospect of an immediate nationwide victory. And of course, if the U.S. Supreme Court declines to nationalize a right, the state courts are the only option—at least when it comes to constitutional rulings.

DL: It’s my anecdotal sense that, in recent years, state courts are getting more attention, very impressive candidates are joining the state bench, and more federal judges are being picked from the ranks of state judiciaries. You refer in the book to a possible “golden age of state court judges,” and you also note the trend of more states having solicitors general, many of them very well-credentialed lawyers who could have taken any number of legal jobs. What do you think is driving this ascendancy of state courts?

JS: Your sense is accurate. Just look at President Trump’s list of possible Supreme Court nominees, and the many fine state court judges he has nominated to the lower federal courts. I see that trend continuing no matter who the next Presidents are, no matter which party they come from. The same is true of state solicitors general, who have become a nationwide farm team for federal and state judges for both political parties.

People forget how many cases are filed in state courts in a given year. In 2016, the number was 84.2 million. With this volume, the state courts obviously are resolving many of our most complicated and sensitive disputes. By contrast, there were a total of 367,937 cases filed in federal courts in the year ending March 31, 2017. The state courts have a far bigger role in resolving our disputes than most people realize—and hold the potential to play a much more salient role in constitutional debates in the future.

DL: Looking to the future, are you optimistic about state courts and their role in constitutional interpretation?

JS: Yes. More and more, I suspect, we will come to see the state courts as leaders, not followers, when it comes to protecting rights. And more and more, I also suspect, we will come to appreciate the value of respecting our regional differences through winner-take-some contests in the state courts rather than winner-take-all contests in the U.S. Supreme Court. When it comes to the application of the most general terms of our constitutional guarantees to modern problems, all we usually have are imperfect options. And it often does not make sense to nationalize one imperfect option when we have 51 imperfect options.

But I must acknowledge that the rebirth of state constitutionalism was pushed before—back in the 1970s through a landmark article by Justice William Brennan. In the decades after the Brennan article, some progress was made but it has remained halting. Perhaps I should worry that state constitutionalism is like American soccer. We keep thinking that we will produce a National soccer team that can win the next World Cup, and we keep coming up short. But if that last remark prompted a knowing nod of the head, you may be suffering from the same kind of chauvinism that infects conversations about constitutional law (and that happened to me when I first thought of this analogy). Anyone who knows anything about American soccer knows our country already has won many World Cups. Over the last three decades, the Women’s National Soccer team has won three World Cups. Just as we are much further along in becoming a national soccer force than we might realize, perhaps we are much further along in taking state constitutions seriously than we might appreciate.

DL: You’ve certainly made a persuasive case for state courts and state constitutions. Thank you so much for taking the time to share it, Judge Sutton!

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

51 Imperfect Solutions [Amazon (affiliate link)]

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

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David 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 [email protected].