A Conversation with Chief Judge Jeffrey S Sutton Court of Appeals for the Sixth Circuit

The following is a transcript of the panel “A Moderated Conversation with Chief Judge Jeff Sutton,” which took place at Thorne Auditorium, Northwestern Pritzker School of Law, Chicago, Illinois, on Thursday, Nov. 6, 2025, as part of the symposium, The Power of State Constitutional Rights. The transcript is edited for clarity.

In this moderated conversation, Chief Judge Jeff Sutton discussed his thoughts one why a strategy of strengthening rights via states constitutions can be more effective in part because it is less likely to trigger backlash than a federal approach.

Speaker:

• Chief Judge Jeff Sutton, Court of Appeals for the Sixth Circuit

Moderator:

• Daniel B. Rodriguez, Harold Washington Professor of Law, Northwestern Pritzker School of Law

Daniel B. Rodriguez: I will, in the interest of time, incorporate by reference all the thank yous that have been mentioned. But with that, again, thank the Brennan Center for their work in doing this. It’s been terrific. I will say I have . . . I’m well aware of the tremendous symposium successful effort that the Brennan Center helped curate and organize at NYU. I can only hope that we beat their record in terms of attendance and all of that. Go Northwestern.

Chief Judge Jeff Sutton — who’s permitted me to call him Jeff for the purpose of this panel — we’re good friends, and colleagues, and collaborators in this area and ALI (American Law Institute) and other events. I won’t say he’s a man who needs no introduction by any means, but he had a nice introduction, so his additional detailed bio is in the program.

I would be remiss though, given this topic, if I didn’t reinforce what was said before by Michael [Waldman]. That is, in addition to his day job, he’s the author of three books on state constitutional law, a seminal work that’s now several years old as it happens, 51 Imperfect Solutions. Highly recommend that book and equally highly recommend his newer book, Who Decides?

He also has a case book on state constitutional law, which I should say is really embarrassing to those of us who are academics who think we toil very hard on our scholarship and work in this particular area, and in my case, manage over many years to publish one book.

And he’s the chief judge of the Sixth Circuit, who in his spare time has written these tremendously important and influential books that continue to have great resonance to us and contributes to this wonderful field, which is a segue into my first question.

I’m going to say, without re-mentioning your books, I’m going to ask Jeff, what do you think explains the renaissance, the great renaissance in interest in state constitutional law? Let me just say, at the end, I think it’s in maybe the last chapter of the 51 Imperfect Solutions. There is, I wouldn’t call it finger wagging, but a strong exhortation to law schools, law students, and law professors to do more in the area of state constitutional law.

And that has, in large part, come to fruition in the years since. But what explains the new attention and interests in state constitutional law, not only in law schools, but in punditry, and in many conversations around the country?

Chief Judge Jeff Sutton: Well, first of all, Dan, it is so great to be here, Northwestern, Brennan Center, thanks to everybody. I’m really honored to be here. And what a great law school. And Dan, thank you for agreeing to talk to me about this.

Well, let me deepen the mystery. I think if you were to look at New York Times and Wall Street Journal articles in the last seven years, they’ve probably written more op-eds and run-of-the-mill articles about state courts and state constitutions than have been written in their entire 100-plus year history. These are profit-making entities. They’re writing stories people want to read and will lead to subscriptions. Why are they doing this? And why, in particular, over the last six to seven years? Well, I think it’s been building, but I do think there are two very quick explanations.

And Mr. Waldman alluded to both of them. It’s not just that we have a U.S. Supreme Court for better or worse — and I’m not taking stands; I report to these guys, so it’s not a pro or a con— it’s just describing a reality that today’s U.S. Supreme Court is much less likely to innovate new individual rights. And more importantly, they’re willing to overrule prior decisions that did recognize rights. And so that would be Dobbs (abortion) and Rucho (gerrymandering). And so when you have the national government withdrawing from the field, in two areas that really deeply affect Americans, and Americans have deep convictions about, the idea that America, 330 million of us, are just going to say, “Okay, well that’s all well and good. We won’t do anything.” is quite delusional.

And so, one thing going on is simply this reality. And I must say this is not just a 2025 phenomenon. The great question in American history, I sure wish I’d known this when I was writing my history exams in college, but the great question in American history, it’s the one thing that we’re always debating is, should we solve a given policy problem locally or nationally? That’s the debate from 1776, 1789, and it’s still the debate. It’s a very dynamic debate.

And so one feature that occurs is, obviously, the national government is the superior entity, but it doesn’t mean there’s not going to be tons of dynamism between the local governments, state courts, and the U.S. Supreme Court. Another way to put this is, historically, do you not think that the U.S. Supreme Court’s fairly aggressive rights revolutions in the '50s and '60s, don’t you think that was clearly a response to Jim Crow at the state level?

So in other words, just as the U.S. Supreme Court responded to what was going on in the states during Jim Crow, nationalizing more criminal procedure and other rights, you can have the same dynamic in reverse, where if the U.S. Supreme Court is doing fewer things, overruling decisions that protected earlier rights, why of course the dynamism’s going to go in the other direction.

So I really think that’s a big part of it, and I’ll just say one other thing because this is a very exciting thing for the students. A quick reaction to this phenomenon is, if you’re intuitive, you’re like, “Why now?” This country’s almost 250 years old. Do people not recognize that they had two shots to challenge state and local laws all these years? And why are we suddenly realizing this now? Why is the Brennan Center just 30 years old? Well, I mean, obviously, it needed a Brennan, but why didn’t they have the concept for 170 years?

And the answer is another I think important point, and again, very exciting for a young lawyer, is that it wasn’t until the '50s and '60s that the two-shot opportunity arose because it was in the '50s and '60s that the U.S. Supreme Court incorporated most of the Bill of Rights and made them applicable to the states. So that’s a dynamic that created the two-shot opportunity.

And so that two-shot opportunity was not around for most of American history. And let’s face it, in the '60s, I mean, if you were a criminal defense lawyer and you couldn’t win a criminal procedure case in the U.S. Supreme Court, you really should have gone home, looked in the mirror and said, “I probably should be a chiropractor.” Because if you couldn’t win in the U.S. Supreme Court of that era, you couldn’t win anywhere.

But the Roberts Court — again, I’m not making a value judgment — it’s not the Warren Court. They’re much less likely to innovate and where they are innovating, it’s often quite different from the innovations of the Warren Court. And what’s going on today is, I’m afraid, going to look very different in 15 years. So it’s, to me, one of the great features of American government, this dynamism between the national government and the local government. It’s always there. There’s always something going on. And regrettably, our civics education has, I think, prevented us from appreciating this interactive feature of American government. But we do seem to be coming to grips with it right now, which is very exciting.

Daniel B. Rodriguez: If I can just add a short comment that comes at it, not from the dynamism point in the renaissance of interest that Jeff was mentioning, but from a more mundane perspective. And by way of anecdote, I point this out to my classes when I began the semester teaching about state constitutional law.

And I make the point, having looked at a lot of regulation and the history of regulation, which is a story about expansion of federal authority beginning the century before last, continuing through the New Deal, accelerating in earnest during the so-called civil rights era on the part of the Supreme Court and the part of Congress. And there’s a temptation to think, well, it’s zero sum, so it must have been the expansion of federal regulatory authority at the expense of state regulatory authority that that state authority was supplanted.

And that’s not really the story. So when I mention this anecdote, I say, where’s the lion’s share of regulation in the area of education happened? At the local level, always has been, long has been. Where is property regulation and zoning? And so I go through this list. Where do you look to get your driver’s license or occupational licenses? And during the public crisis and the Covid crisis, where was most of the activity?

So there’s the expansion of state regulatory authority and the activity of the states has continued unabated, well, unabated overstates it, has continued relentlessly along with the expansion of regulatory authority. So I just simply say “same as it ever was” in terms of the pertinence of state regulation, which of course intersects with matters of state constitutional rights.

Okay, let me take the balloon up by about 10,000 feet a bit and ask this question: Is there one big idea with respect to how we think about state constitutionalism? And I’m thinking about this from the vantage point of what a number of scholars have over the years. I mean, a little reduction is talking about one big idea.

So Gordon Wood famously writes about and has written about the story of state constitutions and the centrality of state constitutions as reflecting and ultimately manifesting itself in the U.S. Constitution as acts of civic republicanism and concerns on the state’s part, and he’s talking about 18th century constitutionalism, but there’s equivalent stories told about 19th century constitutionalism about the need to restrain legislative power.

One of the big ideas, then, is state constitutions and state constitutional rights should be understood in the context of structural and rights-based needs and wants to restrict the overweening, potentially overweening power of the legislature. So that’s maybe a story.

More recently, professors Jessica Bulman-Pozen and Miriam Seifter, who’s, if she’s not here, she’s going to be here for part of this conference, have really thoughtfully suggested that there’s a democracy principle embedded in state constitutionalism. If we think about . . . by contrast to the federal Constitution, we really think about legislative majoritarianism and the promotion of democracy that explains a lot of doctrines in state constitutional law and a lot of these issues.

Our joint friend Goodwin Liu on the California Supreme Court, in an earlier generation, Professor Paul Kahn, and others argued there’s really no there there, right? It’s part of a collective constitutional conversation that doesn’t put pride of place necessarily on state constitutions but what have you. You’ll be glad to know I’m going to stop there. I won’t describe every piece of literature.

But I want to get Jeff’s reaction to this. Is there one or two really big animate ideas as we think about state constitutions that are more appealing to you as someone who’s been thinking and writing about these topics for quite some time?

Chief Judge Jeff Sutton: Well, the balloon kept getting higher and I just wonder how safe it was going to be. But thank you for giving me room to go beyond just one idea. I’ll just give a couple of things that I hope are thought-provoking.

So one point is just a pure civics ignorance that American structure, separation of powers, rights protection, Bill of Rights, and declarations of rights are all state innovations. I mean, when the framers meet in Philadelphia in 1789, it’s really a plagiarism convention where everyone is taking their experience from writing the state constitution’s former colonies. That was the formative experience of every federalist and anti-federalists before they got to Philadelphia.

And so all they were doing was cutting and pasting these ideas from the state constitutions. Ironically, the one truly patentable idea in 1787 is actually federalism. That was the one thing the states had not had to come to grips with. So one big idea is that we really should be honoring these state constitutions a little more because that’s where this all comes from.

My second idea will be not so scholarly and really more the perspective of a former advocate and someone as a judge who is constantly allocating disappointment to half the people that come in front of me. And that’s thinking about individual rights. And I think the two big ideas there that I’d like to put on the table, one’s very simple of course, is that if you can’t win under the federal constitution and federal court, why in the world are you not taking this second shot?

I mean, really, it’s just a math point. If you missed the first shot, why would you not try the second shot? That should be incredibly obvious and basic. And surprisingly, very few Americans seem to appreciate that, including American lawyers.

But let me add a much more provocative point, which is something I’ve really tried to address in my books. One example of this, I think we congenitally assume the very best thing to do for a given right — let’s just say you care about the death penalty, abolishing the death penalty, or you have one view or another on abortion, or gun rights — that it has to be the case that the best thing you can do is nationalize your perspective at the U.S. Supreme Court under a national constitution which prohibits democracy from doing anything in the area.

I get the point. I get why that’s such a supreme victory because your opponents are completely sidelined, right? I mean, if you win on a federal constitutional claim, they can’t do anything. They can’t contradict you through legislation at the local level. They can’t contradict you through state court decisions at the local level. So I quite appreciate why most interest groups, most lawyers with a client will say, “If we can nationalize, we’ve got to do it.” One thing that I think is: That’s wrong, in the “for what it’s worth” category.

If all you care about is a given right, what you should want is the greatest maximization of that right throughout the country. And I think one thing people have lost sight of, with this quest to nationalize, is that even when the U.S. Supreme Court gives you that victory, they’re always going to be hamstrung by having, whether it’s remedies or having to enforce it for over 51 jurisdictions, and 330 million people, there’s often backlash when you get the national victory you so wanted. That backlash can have collateral consequences, which actually undo the very victory you got.

I’ll just try to illustrate it with something that should seem quite counterintuitive to you, but it’s a story about the death penalty, which is a very dynamic story and by no means done. I tend to be, for what it’s worth, no one said this, but I tend to be, to be honest with you, a grouchy conservative, so forgive me. But this is an area, the death penalty, where, if I had my policy druthers, I would say: Let’s get rid of it across the country. So that’s my policy preference on the issue. As a judge, I’m stuck with precedent in the terms of the Constitution, so it’s not something I can act on as easily as one might hope.

But let me just tell you a quick story about the death penalty, which shows how complicated this national localism debate really is. If you were to just look at numbers of executions in the country, they go up from 1776 to the 1930s where they peak at about 300 executions a year in the 1930s. From the 1930s, it’s just a straight graph line down to the late 1960s, early '70s getting to zero. There are no executions in the country, whether by the state governments or the federal government.

At the same time, many democracies around the world, in Europe, Australia, are getting rid of the death penalty through democratic vote through say a parliament. U.S. Supreme Court gets a case called Furman in 1972 and says, “What could go wrong?” No one’s enforcing the death penalty.

Most democracies seem to be getting rid of it. People have appreciated some of the unfairness of capital punishment. Who gets it? Who doesn’t?

They didn’t do themselves any favors. By the way, they wrote the decision, which is like five different opinions, but let’s just put that to the side. The court basically puts a temporary halt on executions in this country in '72.

And maybe this is my big idea: You got to watch out with Americans. They do not like being told what to do. This might be one of the secrets to our success, but it can be deeply annoying if you are in government, dean of a law school, or a chief judge. Americans, they resist being told what to do, and that’s what happened. There was a “Who do you think you are?” reaction. Lots of states that didn’t have death penalties wrote statutes to have them. The states that had them and weren’t enforcing them, rewrote their statutes.

In '76, the U.S. Supreme Court backs off in a case called Gregg. Guess what happens. Numbers of executions from the mid '70s up to 2000 goes up to roughly a hundred a year. So the graph line is 300 in a year going straight down — the U.S. Supreme Court having nothing to do with it. U.S. Supreme Court says, “Let’s nationalize abolition,” backlash, up to a hundred a year. We’re now down. From 2000, it’s gone back down to the last several years, if you average it out, roughly to 25 a year. U.S. Supreme Court has had nothing to do with it.

This has been a state-by-state, state-court-by-state-court, state-legislature-by-state-legislature, state-constitution-by-state-constitution fight. And if you ask me, and if you care as I do about that policy perspective, that is the way to win that game, it’s going to be the better answer in the end. You’re going to get a norm that has shifted, not just nine people in DC, but you’re going to do the hard work of proving that that’s the right way to handle this problem. Now, maybe it won’t end with zero. Maybe it’ll end with 5 to 10. God only knows. But I’m not trying to say exactly what the right answer is. I’m trying to say it is deeply complicated. And as a lawyer, you are an absolute fool if you think nationalizing is always the best thing for your rights. History proves otherwise.

Daniel B. Rodriguez: It’s a wonderful anecdote and a powerful one. I would add maybe another example that supports this big idea, and it deals with property rights. Was it about 20 years ago the Supreme Court decided the Kelo case? Deeply unpopular almost from the time that it was decided.

That was the case that expanded, arguably expanded, the scope of what “public use” means in the context of takings. It didn’t begin the property rights movement, but it put an accelerant to the property rights movement and caused an enormous amount of ferment in state law. And so, Kelo still remains good law for at least the time being.

At the same time, a number of states amend their constitutions to put additional strictures not only on eminent domain and takings, but in fact on a variety of regulations to private property. So whether that was an unintended consequence of the decision or a generative force of state activity, that’s where things are, really, right now with respect to property rights. So many examples.

 Chief Judge Jeff Sutton: Can I be dynamic here, with us? Here’s the irony. And God only knows what’s going to happen with Kelo, but I’ll add to the conversation another similar case, Smith, which is a free exercise case from 1990, just as controversial, led to state and federal legislation, essentially trying to overrule it.

The tremendous irony about those two cases, which are massive losses, if you’re a free exercise proponent, work for an interest group that cares about free exercise, Smith is as bad as it gets. If you’re a property rights person, Kelo is as bad as it gets.

The greatest eras for free exercise protection in this country, the greatest era for property rights protection in this area have been since those two decisions. All right, now, they may still get overruled, but does that not prove that nationalizing isn’t always the very best thing for the right? It was conspicuous, terrible losses from the perspectives of those groups that led to this remarkable generation of rights protection at the local level, and that ain’t going away. U.S. Supreme Court decisions can come and go. When you change norms locally, those things do not easily go away.

Daniel B. Rodriguez: And so they don’t need to overturn Smith. They don’t need to overturn Kelo.

Chief Judge Jeff Sutton: Well, Anthony Sanders — ask Anthony when he’s up here. I mean, my understanding is there were three or four interest groups that were looking for a test case to overrule Kelo, and they had to give up because they couldn’t find one.

And you say to yourself, how could that happen with thousands of localities doing eminent domain every day four or five times? None of those localities wanted to be the next Kelo. They were running from the fear of being the next Kelo. Now, there actually was a case last term. The Court did have an opportunity to decide whether to revisit Kelo, and they didn’t revisit it. Now, maybe that’s your point, Dan, that the need for it isn’t there. Now, who knows? But I will say, if they overruled Kelo, it might truly be the tree that fell in the forest and no one heard it. That’s not an exaggeration.

Dan Rodriguez: Yeah, so one of the arguments among many, but a central argument for independent interpretation, for something not lockstep, for having state courts interpret state constitutions in areas of rights that overlap in the text, and the history, and the context with the federal court, sorry, with the U.S. Constitution, is that, it rests on the idea that state constitutions have unique features, unique histories and all of that, and so those unique features of those state constitutions. So, for example, in the equality protections, I was talking about this yesterday in class. Yes, federal government, U.S. Constitution, equality protections in the form of equal protection, but as a matter of text is rather opaque and has of course a unique history.

State constitutions have had equality protections of different sorts. I remember an anecdote you told me recently about how, when you’re teaching the class, you’ll give the students an opportunity to sort of go look at their state constitution and identify some of the unique features. So maybe you could talk a little bit about some examples of truly unique features in state constitutions. Choose your favorite examples that might support the argument that, hey, we really need to have independent interpretation of this because what’s happening in the state constitutions look very different.

Chief Judge Jeff Sutton: Yeah, there’s two features to this. One is that state constitutions, sadly, are often quite long. The U.S. Constitution is about 7,500 words. There are only three state constitutions in that neck of the woods. The rest of them, really quite long. I mean, Justice Black used to say he’d bring the U.S. Constitution with him everywhere he went just put in his pocket. I mean, if you put the Alabama or California . . .

Daniel B. Rodriguez: Alabama’s number one, the longest constitution.

Chief Judge Jeff Sutton: . . . in the world. The California one, I mean, you got to love it. These are not twins separated at birth, but California’s the same way. If a justice at one of those courts wanted to be able to say he was carrying that with them everywhere, it’d be a really sturdy backpack with a couple different sets of pockets. So they’re not always the most attractive-looking documents.

But I think the two ways to answer that quickly, briefly are: One, it’s really quite exciting for a lawyer and potentially their client that the state constitutions have lots of protections that just aren’t even remotely in the federal Constitution. Single-subject requirements, public-purpose requirements, quite a few things that have no counterpart at all in the federal Constitution.

If you don’t know them, you obviously can’t protect your client. Then the second thing, and this gets to the lockstepping point: Yes, the Bill of Rights, they all came from, except for the 10th Amendment, they all came from early state constitutions. Thirteenth, Fourteenth, Fifteenth, Sixteenth Amendment language all came from earlier state constitutions, same with many other rights protections.

The second thing here is that a lot of them just use different language, often more language. And if I had to put my finger on one big idea about what’s exciting about a lawyer trying to protect a client in state court under state constitutions, is, you can ask a state court to do something that you really can’t ask a federal judge to do.

Here’s what it is. Federal judges are stuck construing one document for the entire country. It’s a very big country, 330 million people, 51 jurisdictions. And we really have to pay attention if we’re doing our job fairly to this whole country, even if we’re someone who believes in living constitutionalism, you still, if you’re going to do that fairly, you got to pay attention to this whole country.

A state court is empowered to customize the meaning of a general word or phrase to account solely for the experiences of one people in one state. I mean, that is a very exciting proposition. I mean, I happen to have grown up in the East Coast. I’ve spent my professional life in Ohio. Most of my family still lives on the East Coast. Let me just tell you something. Ohio is not Massachusetts, and it definitely ain’t New York City. It’s just a different place, and I’m not just talking college football, which is perhaps what we care most about, but it’s just a different place.

And it shouldn’t surprise anyone that a state court of Ohio is going to look differently at some rights from, say, the New York State Court of Appeals. The other thing, and I’ll just try to make . . . this’ll be my last point to try to be specific about an example. Let’s just go back to free exercise for a second, and customization. One point is that a lot of the state constitutions don’t just have language like free exercise of religion, they’ll talk about a right to conscience. So that’s clearly a broader concept because they’re adding it to the same existing language. Well, obviously, different words, different meaning, so that is going to be a more protective-type provision. But let’s think about customization from a history perspective to try to be concrete about it.

Therefore, I would now say five states that were founded by religious minorities, religious dissenters, individuals that had been persecuted based on religion in some cases. So those would be Rhode Island, Maryland, Pennsylvania, Utah. And I learned recently that when New Mexico became a territory, there were 68 religious institutions in the territory, all Catholics. So I’m going to put New Mexico, with Maryland founded by a Catholic minority.

Give me a break. If you are a state court in one of those states, you have that history. You understand what it means to be persecuted based on your faith. Are you not going to construe that provision in a muscular way to account for that history? Or at least are you not going to consider that? A federal judge like me or the U.S. Supreme Court, they can’t premise the meaning of free exercise on the experience of the people of Utah moving from Kirtland, Ohio and one persecution — if not massacre — after another before they land in Salt Lake.

That’s a wonderful feature of American government and rights protection. You can customize these rights to account for unique norms, values, traditions, and history, and sometimes language.

Daniel B. Rodriguez: Let’s try to pierce the veil a little bit. Michael Waldman mentioned the famous article — speech and then article — by Justice Brennan and arguing relentlessly for independent interpretation of state constitutions. Folks thought then and certainly now in a way that was sort of cynical.

Yes, there’s a responsible sort of constitutional argument for it, but everybody knows what’s going on. What’s going on is the effort to basically move away from — and talking about the present rather than so much when he wrote — the pullback, federal pullback, and the reluctance. As a tactical matter, it’s good to come to rely on state constitutions because of an opportunity to expand the scope of rights.

That’s not by any means the only argument for independent state constitutional interpretation, but one can be somewhat realistic or maybe even cynical about the motivations. So probably more than anything else that expanded the scope of attention to state constitutional rights among advocacy groups was Dobbs and the sense that state courts could be welcome homes for that.

I guess I want to ask Jeff sort of a two-part question. Number one is: Is there a basis to be that cynical about the motivation and the tactics? And at least from my part, the more interesting question, maybe a second: Is there a risk of backlash? I mean the state courts, like all courts, are filled with conservative judges, liberal judges, and the like, could it be that more conservative judges will see what is ultimately a tactical effort to move in the direction of expanding the scope of rights?

And one of the consequences of that is actually pulling that back at the state level. Is that a risk and should we be worried about that?

Chief Judge Jeff Sutton: Yeah, well, this is a really important point and I’ll put my policy perspective on the table and be quite candid about it. I’m actually not a fan of judicializing everything. I’ve been a judge for almost 23 years, and I love judges, state and federal alike, but I don’t think America was founded on the premise that we’d rely on five of nine people to protect our rights.

So, to me, it’s always a bit of a tragedy when we have to go to the courts, so be very concrete about it. If I could only have one wish, the genie with one wish, and I could only have either the 1964 Civil Rights Act or Brown v. Board of Education, that’s a no-brainer for me. I would take the '64 Civil Rights Act every time, because what’s the point? To me, the point is to create a culture politically, legally, neighborly, that a majority thinks it’s important to look after minority interest, dissenting voices, et cetera. So that’s why I think the '64 Civil Rights Act is one of the great events in American history.

That said, American rights enforcement is a fast-moving stream. It’s perilous to try to swim against it, and so I’ve decided to swim with it. And that leads to this question of, are we just being cynical and thinking of state courts as this second place to go, and it’s really result-driven, and it’s not really law, it’s more politics and policy?

Let me just pause for a second. I still think of the Justice Brennan article in 1977 in the Harvard Law Review or Law Journal. An Ohio State grad, I wouldn’t know what to call it. But anyway, it’s an important article and good for him.

It shows what a great justice he was, and it hasn’t been mentioned yet, but he got his start in life as a justice on the New Jersey Supreme Court. So he knew what he was talking about. But for that job he would not have gone to the U.S. Supreme Court. He understood the role state courts could have, and I think that’s not remotely cynical.

Now, with the way he wrote the article, maybe he didn’t have to say that state courts should just follow his dissents at the U.S. Supreme Court. That struck me as, I don’t know whether to call that cynical or self-promotion, but maybe that wasn’t.

Daniel B. Rodriguez: Hubris, maybe.

Chief Judge Jeff Sutton: Yeah, well, I mean, hey, Justice Brennan, I mean, sometimes people deserve hubris and whatever. I mean, he’s an amazing man.

Daniel B. Rodriguez: Absolutely.

Chief Judge Jeff Sutton: But let me just try to make two points that show why this is not cynical at all. What does independent state court interpretation mean? It means state courts do this without regard to what a federal judge has said. In fact, if anything, it’s often learning the lessons from the mistakes federal judges have made. That does not inherently mean more rights or fewer rights.

Nothing prohibits a state court from looking at a search and seizure issue, a privacy issue, a substantive due process issue, and saying we’re going below what the feds have done. You can go up. You can go down. The only thing a state court has to do under the supremacy clause is honor the meaning of the federal guarantee. So if it’s a case with a federal and state claim, of course the state court has to honor the meaning of the federal guarantee. It has no equivalent obligation to even respect that reasoning when it comes to the final meaning of the state constitution that that state court has the final say over.

So it’s actually not remotely cynical. You can go either way on this. I’ll just say one other thing, which is showing how time has changed and kind of respect for states that did not exist, and I think it was one of the ways in which Justice Brennan was trying to move the needle.

In that same edition of the Harvard law journal, Burt Neuborne, NYU professor, wonderful guy. At the time, he was general counsel of the ACLU, obviously, a group interested in protecting rights, whether social rights or criminal procedure rights. And Burt Neuborne writes an article, it’s the same edition, and it’s called “The Myth of Parody.” And Neuborne says, “Now, listen, I’ve had a lot of clients, we believe in counter-majoritarian rights. And if I have a choice, we’re always going to federal court and the federal Constitution; because of life tenure they’re more independent, we’re more likely to get relief than if I go to state court.” He writes that article in 1977.

In 1999, a Harvard law professor by the name of Bill Rubenstein writes a piece called “The Myth of Superiority.” Clearly, he’s responding to “The Myth of Parody” article from 22 years earlier. Now, Rubenstein was not general counsel of the ACLU, but for the last two decades, up to '99, he had been involved in gay rights litigation. Now, you might be interested to know, the first priority in that area was not marriage. In the '80s and '90s it was things like not getting fired, inheritance rights, sexual intimacy. A lot of things had nothing to do with marriage.

And the point of his “Myth Of Superiority” piece is that he did better in state court under state constitutions than he did in federal court [under the] federal Constitution. Now, the great question — we want to talk about big ideas for the next conference — is: Why is it that some issues lend themselves to state court and state constitutional protection and others don’t? Is there something out there? Well, his thesis — well, one of them, it’s a long article — is that because 90 percent of state judges have to report to the electorate through some form of election, they can’t be ivory tower federal judges sitting in their chambers. They have to get out and go to Lincoln and Jackson dinners. They’ve got to go to luncheons. They’re seeing evolving norms in society because they’re in society. That’s the only way they’re going to get in when the retention election or whatever the election is.

And I will tell you, I have a very good friend on the Oregon Court of Appeals, and she makes the point in a slightly different way. She says, “One thing I like about this election stuff, I don’t like the idea I could lose my job, but it’s this.” I think, in their case, it’s a six-year situation. She has to go back and kind of think for herself, “Why am I doing this? What do I think is my job here? How do I express this to the people in Oregon?”

And that’s not a bad thing to be doing if you’re trying to be a humble, thoughtful, neutral judge, as opposed to having this forever life tenure job that I’m . . . I mean, it’s not a life sentence but you know. I dunno, term limits wouldn’t be terrible.

Daniel B. Rodriguez: Exactly. Can I give you the other side, suggest the other side of that coin, which is the accountability and the difficulties of accountability. I’m old enough to remember the famous recall in California in 1986 that kicked out three justices of the California Supreme Court. Many years later, in Iowa, after a historic decision involving same-sex marriage, three judges were defeated in a recall.

Even when there’s a retention election, just the other day, three Democratic judges, Democratic appointed judges from Pennsylvania, all saved their seats. But I read somewhere that on average they spent $3 million per judge on the retention elections. So, how do you —

Chief Judge Jeff Sutton: That’s chump change.

Daniel B. Rodriguez: I guess that’s right. Pennsylvania just had a retention election. We’ve got some Wisconsin folks, $50 million in one election. Oh my gosh.

So, what about that? Isn’t the accountability issue a double-edged sword, the difficulties of accountability? And to bring it to our topic, does that sort of threaten in some sense the independence of judges in making state constitutional decisions? They’re always looking over their shoulder.

Chief Judge Jeff Sutton: There is no minoritarian way to select judges. It’s not possible. You have to resort to some form of majority. It’s either a majority-elected president and senate, or it’s elections, or a majority-elected governor.

And if you ask me what is going on in America, this gets back to my point about maybe we’re asking too much of judges. Selection of judges is always going to pay attention to how much power they’re exercising. And it is just a principle like gravity. The more power, the bigger the footprint of a state or federal court on the policy of that state or jurisdiction, the more the people are going to care who those judges are. There is no way around it. And anyone who thinks, “Gee, Pennsylvania, California, Iowa, Wisconsin” — do any of you that have that thought and worry that, “Oh, we’re politicizing judges,” say to yourself, “Well, at least the federal system is a paragon of purity”? Seriously, does anyone have that thought right now? Is anyone looking at the U.S. Supreme Court selection process and saying, “Well, they have found a neutral way to do this. They have found an apolitical way to do this. They have found a way that doesn’t risk politicizing this crown jewel of American government”?

To me, it’s a judges-have-to-look-in-the-mirror problem. And I will say citizens might be looking in the mirror a little bit, too. Maybe you’re asking too much of judges that we don’t want to create just a House of Lords judiciary where we’re just a third branch of the legislature that is actually engaged in representation of constituencies.

I mean, that’s what this question gets to. What is judging? And I don’t think it’s representational. I don’t think that is the point. Forgive me, I’m sure I’m offending some people, but I think we’re supposed to honor these democratic compromises and choices, whether in constitutions or statutes and sometimes make policy through common law. But otherwise, I don’t think we’re supposed to represent constituencies. And sadly, both at the state and federal level, I think we judges have to worry if that’s the way we’re going, and what can we do to just hold the line? It’s not easy, I must say.

Daniel B. Rodriguez: Let me bring in a couple questions that have come in. One question from a student is: How do you square advice about pursuing state avenues for protecting and expanding individual rights with the practical complications of living in a country where your rights change when you cross state lines?

Chief Judge Jeff Sutton: Yeah, no, this has been a huge reason to be skeptical of states whether in legislation or state constitutions. What can I say? The simple answer is that if it’s in the U.S. Constitution, it doesn’t change when you cross state lines.

Of course, the rights we’re fighting the most about, usually they’re not clearly in the U.S. Constitution. They’re arguable, contestable debates. And what’s frustrating is when you lose one of those debates and all you’ve got is the resort of the local option. So my point there is not to defend the U.S. Supreme Court decisions or congressional decisions that people might be thinking about here, but my very basic point is this. You can be very principled about that and say, “When it happens that the U.S. Supreme Court does not nationalize the right, I’m going to want a principled approach, just embrace misery until they do.” You can do that. I mean, misery is actually kind of fun for a little while. It gets old. And when it gets old, I strongly suggest you do the next best thing. Get your state to adopt the right.

Now, let’s just pause for a second about why that’s not just a bad thing and why Brandeis had one of the great insights about the American government. It’s one of the few things we all completely agree about, that when you’ve got a new policy problem and you’re not sure what to do with it, and there’s disagreement around the country about the right way to go, why not use the states as laboratories of experimentation, and from the ground up, build this thing up?

That was the point of my death penalty story. You can do ground up through legislation. Brandeis was not specifically speaking to state courts, but there’s no reason his insight does not apply to state courts interpreting state constitutions. So if you lose at the national court, have the courage of your convictions to win state by state, you may make the national government irrelevant eventually, see Kelo, see Smith, or you may get a national victory at the end of that effort. You get the point.

The only other thing I will say about that: For every right you want nationalized because of the problem of crossing state lines, just make sure you’re willing to accept one that’s nationalized that involves a different political perspective than yours. Because our destiny, if we stay down the road we’re on, is: You’re going to win 50 percent of the time.

You’re going to absolutely adore what the U.S. Supreme Court did on this or that right. And you are going to resent deeply what they do with respect to other rights that you happen to think should not be in the U.S. Constitution. It’ll be fifty-fifty. That is your destiny, which is partly happy, partly miserable. But I think why not be mainly happy by winning all these things locally?

Daniel B. Rodriguez: Although, when I listen to you, fifty-fifty ain’t bad. I’ll take fifty-fifty.

Chief Judge Jeff Sutton: Yeah, I mean, yeah. Well, I’m for a hundred. I mean, why not be super happy? Dan, you’re going through life. Do you say this to your kids? Hey, did you say this to your kids, fifty-fifty is not bad in life?

Daniel B. Rodriguez: No, no.

Chief Judge Jeff Sutton: No, don’t say that to your kids. We’re going for the whole thing.

Daniel B. Rodriguez: Fifty-fifty on just executive orders, but that’s a separate topic for another day. All right, so someone asks . . . Segue from —

Chief Judge Jeff Sutton: That’s a different topic.

Daniel B. Rodriguez: Which individual right do you have in mind that’s ripe for exploring at the state court level?

Chief Judge Jeff Sutton: Oh my gosh. There’s just so many things out there. Well, let me tell you a story. This is a little bit indulgent. Forgive me. I’ll try to do it quickly. But this just shows how truly ignorant we 330 million, 340 million Americans are. Put the lawyers to the side. The lawyers are just as ignorant.

This is just an astonishing story to me. So there’s a case from 1968 called Terry v. Ohio. It’s a massive case in diluting the meaning of the Fourth Amendment. And what Terry v. Ohio says is that if the police have a reasonable suspicion that the individual is up to no good, they can stop the person. I must say I don’t think that probably violates the Fourth Amendment. I’m pretty comfortable with that part of Terry.

The second part of Terry, though, is that you can, quote, “frisk” the person. Now, I think it’s a very big deal in this country, and I think Americans think it’s a big deal when someone puts their hands on you. And if it’s not at an airport, it probably ought to be something more than reasonable suspicion. Terry v. Ohio is 1968. We’ve had lots of movements since 1968 that care about law enforcement and the relation to the community police, but let me talk about one, which is not that old, Black Lives Matter.

Now, there are a lot of issues underlying Black Lives Matter, but surely one of them may be the most important is breakdowns between trust of the community and law enforcement, whether it’s St. Paul, Ferguson, Missouri, Baltimore, Maryland, New York City. We’ve had lots of problems related to this.

There are hundreds, if not thousands, of lawyers in this country focusing every day on the underlying causes of Black Lives Matter. Okay. They’re waking up every morning, and that’s all they’re doing. And yet not a one of them has thought to go to a state court and say the search-and-seizure guarantee in our state constitution does not permit stop and frisk. This is not a state court problem. This is a lawyer-citizen problem. No one is making the argument.

And let me just say something, Dan, which is true of professors and judges. We are not known for having a shortage of opinions and making a shortage of arguments. If there’s one thing judges hate, it’s how many arguments people make. No one’s even making this argument.

Now, I will say there’s one modest exception. It’s a law review article. No, that’s an overstatement. It’s a student note in the Virginia Law Review by someone named Nathaniel Chase Sutton. Now, that would be my oldest child. That article is astonishing, [along with] its insights about the arguments people should be making in this area. Now, what I want you to do when you think about what I just said is feel guilt. I am going around the country writing books, giving talks, leaving my family to be with Dan. It doesn’t stop there. My wife and I are bringing people into the world and making them right about state constitutions.

Daniel B. Rodriguez: Cruel and unusual punishment.

Chief Judge Jeff Sutton: I think you can at least do a bit today to further the cause, all right? So that is an . . . believe it or not, I answered the question. That is an astonishing example of ignorance. People don’t even know to say, maybe. Every state in the country has a search and seizure guarantee. There is no exemption. Every single one does this. And no one’s even arguing to the state courts, “Maybe stop and frisk is a little aggressive, and we’ll allow for stop, but frisk, we want probable cause or something more.”

Daniel B. Rodriguez: I’m feeling guilty. My favorite example, my students know, is after the Grants Pass decision a couple years ago there’s this hand wringing, like, “That’s it, I guess that’s the end of constitutional adjudication.” And I said, “They just missed a bunch of opportunities — and I hope they won’t continue to miss — to have state constitutional protections that might stand in the way of criminalizing homelessness.

Chief Judge Jeff Sutton: We are not going to sort out homelessness at the national level.

Daniel B. Rodriguez: That’s the point.

Chief Judge Jeff Sutton: That is a neighborhood . . . And it’s absolutely outrageous that there is not a meaningful urban community you can go to in this country that doesn’t have that problem. I mean, it just blows me away. And why we aren’t as communities — forget the national organizations. This is the responsibility of the people walking by the people each day. In fact, I think sometimes thinking there’s a national solution allows you to do that. I think if you actually thought, “No, no, this is your community, this is your neighbor, this is not something the president or Congress is going to fix,” maybe we might stop.

Daniel B. Rodriguez: Let me ask one other quick question and then we’ll need to wrap up. The generative force of state court decisions: There’s examples we know, and you’ve gone through many of them in your book, in which a state court renders a really important constitutional decision, but it sort of falls like a stone with respect to other states. The Pruneyard decision a long time ago, the cases in New Jersey that really changed in fascinating ways the state action requirements in the context of free speech. Really important, we still teach those cases. But they, in 2025, are pretty much located in California [and] New Jersey. Ravin v. State, in which case Alaska years and years ago says there’s a constitutional privacy right that protects against laws restricting marijuana. Still in the case books, but it hasn’t had sort of generational force with respect to other states.

And, meanwhile, other state cases — I mean education, finance cases, intimate association cases, criminal procedure — some state courts, a couple state courts, render a judgment, and then other states follow. Is there anything that describes maybe why in one area, doctrinal area, other states adopt those approaches, and in others they don’t?

Chief Judge Jeff Sutton It’s really hard to put your finger on it. Obviously, each state court is different. I was stunned that, for example, Hawaii rejected Ravin. I would’ve thought if you had a constitutional right to smoke marijuana —

Daniel B. Rodriguez: That everyone does in Hawaii, smoke weed.

Chief Judge Jeff Sutton: Well, I couldn’t understand it. Maybe the point was they never enforced those laws, so you never got the case. That gets back to the legislative choice. A lot of policy problems are sorted out legislatively. So that might explain the Hawaii-Alaska disconnect.

But other times — this is a really important point. It’s one of the things I just love about federalism, and I’m a huge Wendell Berry fan. There is a law of place to keep in mind. So, one conspicuous example of a state court that has not been purely anti-Kelo, this is property rights, is the New York State Court of Appeals. They have this case, Goldstein, where they’re dealing with the Brooklyn NBA teams, that redevelopment. And you could understand why eminent domain might look a little different in New York City, Brooklyn than it does in Oklahoma and Ohio. So, I sometimes think it’s quite legitimate. It really is explained by differences in place, the place actually being purely geography, and just what are the conditions or the numbers of people, and that’s not a crazy reason for having a different jurisprudence.

Daniel B. Rodriguez: Great. We really need to end, but I wanted to . . . Jeff said he had a wonderful story about somebody who we knew well.

Chief Judge Jeff Sutton: Yeah.

Daniel B. Rodriguez: The late Justice Hans Linde. So I’ll let you end with this.

Chief Judge Jeff Sutton: If you don’t mind. So Hans Linde is someone I’m going to guess most people here have not heard of. He was really one of the leading voices about state constitutions in the '60s, '70s, '80s, '90s really, and big progressive. And he was on the Oregon, well, University of Oregon Law School faculty for 15 years, then on the Oregon Supreme Court for 15 years, where he really revolutionized state constitutional law in Oregon.

And so, I’d corresponded with Hans, written lots of articles and books based on his work, huge fan. For me, it’s like meeting Mickey Mantle.

So, towards the end of his life, I had a friend of mine from Oregon. [I said], “I’d love to meet Hans.” And by then, he was 92. He and his wife were in a nursing home, but he was totally with it. So I get there, meet him. It was just such a great moment for me.

And I said, “Hans, I don’t want to miss an opportunity, but I just have to ask you, I hope this isn’t too direct a question, but I’ve never understood why you as a big progressive got on the states’ rights bandwagon. I mean, did you not get the memo that federalism and states’ rights, that’s not exactly a progressive concept?”

And he said, “Jeff, it’s very easy and it’s very autobiographical.” He said, “I was born into a Jewish family pre-Nazi Germany.” He and his brother, two boys, the father was a lawyer. Hitler, of course, comes to power. The father looks around and says, “This doesn’t look very good.” Sends the mother and the two boys to Copenhagen, Denmark. They stay there for a few years. The father holds on. Finally says enough is enough, moves to Copenhagen. They’re there for a little bit. And then they decide, “We’re not even doing this. We’re moving to Portland.” Presumably, they had family or someone in Portland, the reason for going to Portland, Oregon.

And so, Hans looks at me and says, “I had two goals in life. I was going to make sure this new country never centralized government in the way this one Nazi Party, one fuhrer, one Germany, had done. And I was going to try to recreate Copenhagen, Denmark in Portland.”

And to me, that just says it all. It proves it’s a neutral point, that nationalization can be very good and it can be very horrible. Localism can always be great, and that’s why it’s not a fifty-fifty proposition. It is a 100 percent proposition, because we want happiness, not just middling getting through life. Anyway, thank you. It’s been great to be here.

Daniel B. Rodriguez: Thank you. Please join me in thanking Jeff Sutton for that.

(audience applauding)