Judicial Federalism and the Status of State Constitutions

The following is a transcript of the panel “Judicial Federalism and the Status of State Constitutions,” which took place at Vanderbilt Hall, NYU School of Law, New York, New York, on Thursday, Feb. 8, 2024, as part of the symposium, The Promise and Limits of State Constitutions. The transcript is edited for clarity.

This panel focused on the role of state constitutions in our federalist system. The panelists discussed the structural and normative justifications for judicial federalism, identified obstacles that have hindered state constitutional development, and explained what legal stakeholders can do to promote state constitutional development.

Speakers:

• Jerry Dickinson, Vice Dean and Associate Professor of Law, University of Pittsburgh School of Law
• Judge Caitlin J. Halligan, New York Court of Appeals
• Justice Goodwin H. Liu, California Supreme Court
• Julie Murray, Senior Staff Attorney, State Supreme Court Initiative, ACLU
• Robert F. Williams, Distinguished Professor of Law Emeritus, Rutgers Law School

Moderator:

• Alicia Bannon, Director, Brennan Center Judiciary Program

Alicia Bannon: Welcome and good morning. My name is Alicia Bannon, and I direct the Judiciary Program at the Brennan Center for Justice and also serve as the editor-in-chief of State Court Report. I’m thrilled to have the opportunity to moderate the first panel of our symposium, which will be covering “Judicial Federalism and the Status of State Constitutions.”

We’re going to be discussing the relationship between state constitutions and the federal Constitution. As you’ll be hearing a lot over the next two days, there’s more than one constitution in our American legal system, and when it comes to protecting rights, the U.S. Constitution is a floor, not a ceiling. And this isn’t new. This is part of the deep structure of the American legal system, but it’s something that’s drawing heightened attention in the current moment at a time when, in many arenas, the U.S. Supreme Court has limited or eliminated federal protections. So we want to use this panel to explore the interplay between state constitutions and the federal Constitution and the U.S. Supreme Court, including why in many arenas state constitutional law has been relatively underdeveloped, and what we might do to change some of those dynamics.

We have a fantastic panel to explore these questions with today. Jerry Dickinson is the vice dean and associate professor of law at the University of Pittsburgh School of Law. The Honorable Caitlin Halligan is a judge on the New York Court of Appeals, New York’s highest court. The Honorable Goodwin Liu is a justice on the Supreme Court of California. Julie Murray is a senior staff attorney in the ACLU’s State Supreme Court Initiative. And Bob Williams is an emeritus distinguished professor of law at Rutgers Law School. Please join me in welcoming our panelists here today. (Applause.)

I will be leaving time at the end for audience questions. To kick us off, I’m going to turn to Judge Halligan. When most people think about constitutions, they think about our federal Constitution. Can you explain to us what you see as the role of state constitutions, like New York’s, in protecting rights?

Judge Caitlin Halligan: First of all, I want to start by saying how incredibly excited I am to see this sell-out crowd, standing room only (laughter), including my colleague also from the Court of Appeals, Judge Tony Cannataro, to talk about this issue. Michael Waldman mentioned Justice Brennan’s seminal lecture. That was reprised about 20 years afterwards by Chief Judge Judith Kaye — whose portrait, I believe, hangs over in that corner — and more recently by Justice Liu, who also came here to talk about the role of state courts. So I think NYU is clearly a place that has been thinking about these issues for a really long time.

And I’m, I think, among this panel the newest, perhaps, to trying to sort through these issues. I joined the Court of Appeals in 2023. And so, as I start to dig into these questions, seeing all of the careful work and thought that’s been done is really a tremendous resource and exciting.

To your question, maybe a little table-setting is helpful with respect to state constitutions. I think it’s helpful to think about state constitutional provisions in two buckets. And for those of you who have looked at them, you’ll notice one thing is . . . that many of them are much longer than the federal Constitution, which we can all carry around in our little pocket copy. State constitutions — a little bit harder.

State constitutions have, generally, a number of provisions that have no parallel in the federal Constitution. So, for example, thinking of New York State, New York has a provision that many states have that has been the subject of a lot of litigation, which is in New York called the sound basic education clause. Many states provide some substantive positive guarantee to an education. And there has been, in New York and many other states, a fair amount of litigation about what that means and how that might be enforced, including in terms of funding obligations.

Another one in New York — and I don’t think it actually has a parallel anywhere in the 50 states — but for those of you who have been to the Adirondack Park in upstate New York, which is beautiful, New York has something called the forever wild clause, which requires that property which is publicly held and in the Adirondack Park boundaries cannot be alienated or used for commercial purposes. And so that’s something that has also been the subject of litigation, including over things like whether you can build snowmobile trails in the Adirondacks.

I think in any state you will see a series of provisions like this which don’t have a federal analog, and often, litigation about what they mean — whether they are self-executing and enforceable and so forth. I think what we’ll probably spend most of our time talking about today and over the next two days are provisions that have an analog in the federal Constitution, whether they are textually identical or whether they are close.

And there I think a lot of the questions that you put on the table for us, Alicia, really are brought to bear: Should state courts interpret those provisions identically to the analogous federal provision? If they want to interpret them differently, what are the interpretive materials that they should look to? What order should they decide those questions in? Do you look at the state constitution first or the federal Constitution first, and why? So I think that that area of state constitutions provides a really rich set of questions to think about.

When it comes to what in New York cases is called noninterpretive materials — by which I mean something other than the text of the provision or the structure of the provision or the history of its enactment — I think you find some particularly interesting case law and a range of opinions, including some writings from Judge Kaye which are very interesting. And since my guess is we have a New York–heavy audience here, I’ll just take a minute and share a little bit of this with you. And this is something that has come up particularly in cases involving New York’s parallel Fourth Amendment protection and also its First Amendment protection.

The question really is: What are any New York–specific values or concerns that a court should bring to bear in interpreting the scope of the state provision and whether it’s broader than the federal provision? So, there is a Fourth Amendment case in which the court says, “Well, this is a question about whether or not you have an expectation of privacy in your land beyond your house,” beyond what in the case is called the curtilage. And the Supreme Court had said no, and the New York court concludes, to the contrary, yes, because there’s a broader privacy right here. The Court says, “Well, the argument seems to be that law-abiding persons should have nothing to hide on their property, and thus there can be no reasonable objection to the state’s unpermitted entry on posted or fenced land to conduct a search for contraband.” But this presupposes the idea of a conforming society, a concept which seems foreign to New York’s tradition of tolerance (laughter), of the unconventional and what may appear bizarre or even offensive.

A later case — this is a libel case — says, “This state, a cultural center for the nation, has long provided a hospitable climate for the free exchange of ideas.” The dissent was not quite so impressed, returning to the Fourth Amendment case. The dissent eschewed this ground as adoption of a new, unique New York ground — in other words, a pervasive, all-encompassing privacy essence.

I’ll finish by returning to Judge Kaye in this Fourth Amendment case. Here’s what she said about this project of trying to ascertain what state-specific considerations like this might be. She surveyed a number of closely divided cases. There was a series of 4–3 cases. The court has seven judges. And she said, “Well, at least four judges, although not always the same four, in these cases invariably have agreed that the search for distinctive New York values was central to the question of independent interpretation, but the judges differed on the outcome of such an inquiry.” So I think that that gives you some sense of the landscape and what this aspect of thinking about the parameters of state constitutional provisions that have a federal analog might include, and what we might start to unpack there.

Bannon: Thank you. That’s a wonderful foundation for our conversation today. I’m going to turn now to Julie to help build on that foundation. You are helping to build the state Supreme Court strategy at the ACLU. And I would love to hear from you, Julie, about what you see first as the relationship between state constitutions and the federal Constitution, and then also a few examples where you’ve seen or have been seeing state courts playing a significant role in rights protection.

Julie Murray: Well, thank you for having me. I’m excited to be here and be part of this discussion, and also to share about our work at the ACLU. As an advocate, I think that, in part, the relationship between state and federal constitutions is that it at least potentially gives you sort of two bites at the apple. I believe Judge Sutton has talked about, in his writings on state constitutions, this aspect of having the option of bringing both state and federal claims in some cases, and ultimately, other grounds for protecting people’s civil rights.

I think the reality of this moment, of course, is that there has been a lot of increasing attention to state constitutional law. But I would say, from where we sit, the ACLU and many other advocates around the country have been relying on state constitutional law for many years.

I know I’m joined by a lot of legal directors from the ACLU here today, who I’m sure can tell you a lot about the history of litigation in their state courts on state constitutional issues. But certainly, I think the moment that we are in has changed the interest in potentially going to state courts and bringing state constitutional claims.

In terms of where state constitutions can potentially provide greater protection for civil rights and civil liberties, for example, I mean, I think there are some historical examples of that. And then I can give some from current day and what we’re seeing.

Certainly, if you look, for example, at the movement to recognize and permit marriage between same-sex couples that occurred state by state by state until we had a national change. And I think that that is a model for how state constitutional litigation can happen and can create change at a national level over time, meanwhile protecting the rights of citizens in many states around the country.

Currently, what we are seeing – you know, certainly I will say I used to – before joining the ACLU, I was a litigator at Planned Parenthood. The work on abortion access, even before the Dobbs decision eliminating a federal right to abortion — many cases were already being brought, litigated in state court through theories of state constitutional law, including Kansas. Kansas is one of them, but there are numerous other states that have protected, even before Dobbs, the right to have an abortion, around the country. And that is absolutely what is providing or making it possible to provide care to thousands of people around the country. So it has a real impact on the ground.

Another area that I don’t believe we’ve mentioned yet this morning but that’s certainly important and unique in many state constitutions is voting rights provisions. Unlike the federal Constitution, which doesn’t expressly create a right to vote, state constitutions often do. And they have a lot to say about voting, how you draw districts. So we are certainly seeing litigation in state courts over voting rights that could not – it simply couldn’t be brought at the federal level because the protections, the language that advocates are relying on, doesn’t exist there.

And I want to say one last thing about the relationship between state and federal constitutional law and how I think about state constitutional litigation. I litigated federal cases for many years almost exclusively, and I think oftentimes, there was an approach to that litigation that you litigate to win the case, and the ultimate outcome is do you win or lose? The court says what the law is, and that’s sort of the end of the matter at the federal level as a practical matter, because we amend the U.S. Constitution so infrequently.

State constitutions have much more of a dynamic role in advocacy because they’re frequently amended. And so, even at the state level, if you are litigating over a right, ultimately, you might not prevail. The court says what the law is, and that is certainly their role, but there is much more room for citizens to then say, “We want to talk about what the law should be and to make that a reality.” And I think that’s a very different framing of at least constitutional change at the state level that I think is certainly important in our advocacy.

Bannon: Thank you. I want to dig a little more deeply into the “should” of judicial federalism, some of the normative and structural arguments around the value of state-centered jurisprudence and the limits of that approach. I’m going to turn to Justice Liu next. You’ve written about many of these questions. Can you talk to us a bit about what you see as the basis for the legitimacy of state constitutionalism and those limits?

Justice Goodwin H. Liu: Good morning, everybody. And this is an amazing gathering. I want to echo what Judge Halligan said. If you had told me 13 years ago, when I first joined the bench, that we would have a sold-out conference with an overflow room on state constitutionalism (laughter), I wouldn’t have believed you. And even I would say six years ago, when I was in this very room giving the Brennan Lecture on this very topic — I think, you know, people show up for the Brennan Lecture because they’re polite, but you’re all here because there’s a tremendous interest in this topic, and that really says something.

I think it’s especially appropriate that the Brennan Center be the convener of this because Justice Brennan, I think some of you know, was himself a state court judge for many years. He served on the New Jersey high court for a number of years before being put on the U.S. Supreme Court, and he was one of the principal architects of the modern New Jersey Constitution, so he knew what he was talking about when he talked about state constitutions because he had actually had that direct experience. And maybe that’s as good as any as a departure point.

He wrote this seminal article in 1977–78, and ever since, I think there’s been a kind of underlying — I’ll just call it a setup of the problem. And it basically is like this: Brennan was writing at a time when his Court was undergoing a lot of change. There had been four appointees of President Nixon to the Supreme Court. There was a curtailing of the Warren Court’s precedents on individual rights and liberties.

And Brennan was a very savvy person, and he saw the writing on the wall. He knew where this was headed, for at least a generation. And so he wrote this very slim, 16-page article (law review editors take note: 16 pages, right?) — one of the top-10 most-cited articles of all time. (So another one on that list is Oliver Wendell Holmes’ “Path of the Law” — 22 pages. So take note.) (Laughter.) And in 16 pages, he basically said, I think the nutshell version is: “Well, things aren’t going that well with the federal Constitution right now. See the 36 cases that I’m citing in this article where I dissented, right? (Laughter.) Now please consider these ideas under your state constitutions, OK?”

Now, as a doctrinal matter, in the hierarchy of laws and the federal system, this is a perfectly fine argument. It’s two bites at the apple, as Julie said. But I think the thesis has always been viewed with suspicion because it is fundamentally — I mean, if you’re critical about it — results-oriented. And I think that has been the problem. To problematize this issue, the problem has been that the natural question people ask is: is this all about kind of a one-way ratchet towards ever-expanding rights of a liberal character, meaning a politically liberal character? And when you don’t get what you want from the U.S. Supreme Court, then you take it to the state level and you try to repackage it doctrinally in some different guise?

As an explanatory matter, I think that explains a fair amount of why many state court judges throughout the country look a little bit askance at this project, because it’s sort of like, well, should we be in the business, essentially, of countermanding the U.S. Supreme Court simply because we disagree? So the topic I tackled when I approached this, when I first came to this subject (which really was the Brennan Lecture) — that was the question I was interested in. And actually, it turns out my answer is yes. (Laughter.) It’s a qualified yes, but it’s a yes.

And it’s a yes on these grounds: The grounds have nothing to do with the political character of the rights at issue, because it should be pointed out — as Judge Sutton has pointed out in his writings and other folks as well — that rights, if you think about them, can be liberal or conservative. There are plenty of property rights that many liberals would consider conservative, but they are also rights, and indeed, many state constitutions have property rights protections that the federal Constitution does not. So we shouldn’t necessarily categorize in a kind of left-right manner. But the basic postulate has nothing to do with political character; it has to do with the nature of federalism.

Why is it that we have two levels of courts in America, just like two levels of government? It’s fundamentally because the framers of the federal Constitution wanted there to be a wide dispersal of power and interpretive authority, because in a very diverse nation, not everyone is going to agree on everything all the time — maybe not even most of the time. And if you want to build a society that can stay together as a society, you need to have lots of outlets for these kinds of disagreements. And so state constitutionalism (or judicial federalism) is one of these mechanisms.

And so the idea there is, as in so many aspects of the constitutional structure of this country, a measure of redundancy that’s built into the system intentionally. Think of the amount of redundancy there is in interpreting the federal Constitution. We think of that as the job of the courts. But the executive branch does a ton of constitutional interpretation, as does occasionally the legislative branch. We do that because we want to disperse power and interpretive authority.

What I would love to see is this conference not just convened in times when there is this sense that something has gone awry federally, but it should be a regular fixture of what we teach our students, of how we think about our law, and how we think about the job of courts. And so that’s my kind of opening bid: that we ought to think about state constitutionalism as part of the way that the overall constitutional structure of this country gives expression to a diversity of viewpoints on very important topics on which not everyone is going to agree.

Bannon: Thank you so much for that. Jerry, I’m going to pull you in next to talk about a different dimension of some of the structural elements of judicial federalism. You have written about how state constitutional development can impact federal constitutional interpretation and have argued that we should be thinking about state courts as laboratories of democracy. Could you elaborate on what you mean by that and how you see state constitutionalism fitting into our broader legal system?

Jerry Dickinson: Sure. Thanks, Alicia. And thanks to the Brennan Center for this wonderful event.

I’ll start off by talking about Justice Brandeis’s famous parable/dictum that states are laboratories of democracy for social and economic change. And in many ways, we oftentimes think of that quote as the state legislatures, right? State legislatures are the ones electorally accountable to the people, and that they can experiment without risk to the rest of the nation. And I think that’s true in many sense(s) that it is about the state legislatures, but there’s another dynamic in the laboratories account, and that is state courts. And I think you can think of the state courts as laboratories in two models.

The first one is state courts as laboratories in defining the scope of constitutional rights by looking to their state constitutions. In 50 states, state supreme courts, they have the ability to innovate and to expand greater protections to rights. They can create new rights under a state constitution. So these laboratories — 50 laboratories where state courts are doing this – consistently year in and year out, this laboratory model of expanding rights. So that’s the rights notion of laboratories, and how state courts play a role in that, and how state constitutions are fundamental to that dynamic.

The other aspect of laboratories and state courts serving as laboratories is a bit more controversial in that three-fourths of the states have judicial elections. Judges are electorally accountable to the people in many states. And they interpret highly mutable state constitutions that are amendable and are amended by majoritarian preferences consistently through ballot initiatives. And they run on a party line or ticket. And in many ways, you can see in this laboratory account state judges as democratic agents and perhaps results-oriented decisions playing a role in that. And so that’s not so much the scope of rights, but more of a political accountability. These are judges who are electorally accountable working within that system of laboratories. And it’s a controversial one, of course, because in many ways, we think of state judges as counter-majoritarian agents, not majoritarian agents. But we do have to recognize and work through that dynamic and understand that that is part of the DNA of our constitutional system as a result. Thank you.

Bannon: Thank you. I’m going to turn next to Bob. You have been a leading scholar of state constitutional law for about four decades, and we would love to hear your perspective on what has changed over that time. We’ve been speaking a lot about Justice Brennan and his famous lectures on this topic. Are we in a new era now? How do you see the conversation changing or staying the same over that time?

Robert F. Williams: Thank you. Well, you can imagine how I feel being in a room like this, starting out on study of this stuff in 1980 at Rutgers. And it’s interesting, there were some glimmers of interest in state constitutional law before Justice Brennan’s 1977 article, which by the way started out as a talk at the New Jersey State Bar Convention. But his piece, obviously, jumpstarted the field in a huge way. And it was a time that we saw the advent of the new Burger Court. And at that time, we thought the sky was falling. I mean, we hadn’t seen anything yet, as you know (laughter), but still, there was what Justice Liu said: there was a sense that this was illegitimate; that people were just going to state courts to get a result-oriented result. And there’s some truth to that. But in those days, it was the early thrill of discovery.

It was interesting. State judges on high courts, and even in the intermediate appeals courts, were saying, “Wait, we can disagree with SCOTUS?” And of course that was always the case, but during the Warren Court days, there was not much need for that from a perspective of progressive people. So there was this thrill of discovery. It was quite heady in the early eighties, even at the end of the seventies.

But there was a backlash. And it was the legitimacy criticism, the advent of state constitutional amendments to overturn judicial decisions at the state level, and even the defeat of elected state judges in California, later in Iowa. I think you all know about these things.

So there was a process that resulted in a grudging acceptance of independent state constitutional decision-making. It sort of came to be accepted. And we moved through a generation of state courts sometimes interpreting their constitutional provisions in this bucket of rights that share an analog with the federal Constitution. Talk a minute later about rights that don’t have any analog.

So, in 2010, Dean Erwin Chemerinsky of Boalt Hall, as we used to call it, wrote an article called “Two Cheers for State Constitutional Law.” And his point was, “Look, these decisions that people are winning, going beyond the federal floor of rights, are somewhat vulnerable.” Yes, they can be overturned by a state constitutional amendment — virtually impossible at the federal level. I think it’s happened three times over our history, and not particularly with rights cases. Judges can be – can be voted – threatened or voted out of office. And even, we saw, with the rise of the marriage-equality litigation, that states could amend their constitutions ahead of time to preempt a more progressive state court decision, even before a case was ever filed. So we saw that wave of amendments across the country.

And of course, Chemerinsky was correct that a state constitutional victory recognizing rights under the state constitution that are more protective than a national decision by SCOTUS is a second-best alternative. But as I’ve said, anybody who’s ever won a case in a state supreme court knows it’s not chopped liver. And particularly people who are not doing a national litigation strategy but are representing a client who came through their door — it’s a big deal. But nobody imagines it’s the same thing as a SCOTUS victory for the country.

Now we have the advent of the Trump Court, and I believe I could say that’s why we’re here today. If that hadn’t happened, I don’t think we would be here with this crowd of people. I’m retired. I don’t think I would have been speaking to people about state constitutional law, but for the Trump Court. And so we’ve seen two new things, really: the dramatic hands-off approach to gerrymandering, abortion; and the less visible hands-off attitude at the U.S. Supreme Court level on things like juvenile long sentences and things like that. Many, many other areas are now being — even if there were some progressive developments at the Supreme Court — are now being left to the states. But interestingly, at the same time, we have a dramatic hands-on attitude at SCOTUS: gun rights, religious rights. Those expansive interpretations of the federal Constitution do freeze out state courts from any particular role in those areas.

And what is going on now, we have the extreme polarization at the national level filtering down quite significantly to the state level. National political issues are now state political issues. State courts are becoming polarized as well. We have the advent of huge amounts of out-of-state money coming into states with respect to judicial elections that we have not seen before. And frankly, from many people’s perspective, the model of judicial behavior being displayed at the U.S. Supreme Court level on respect for precedent, ideas about judicial ethics, and what have you are also filtering down to the state courts. So we have some not-so-respectable activities at the national level also filtering down to the states.

Very quickly, Neal Devins wrote in our law review at Rutgers a whole list of reasons why he thought at the time we weren’t going to have an expansive experience with state courts interpreting their constitutions more protectively. He listed some of the things I mentioned before — elected judges, many of the state courts don’t have docket control so they can’t avoid controversial cases if that’s what they want to do, and that there are very few state courts that are structured to be pathbreaking state supreme courts. I don’t agree with everything he said, but for me, the way I see it now is, to some extent, all of these things are true, but most of them go both ways.

Yes, you can amend a state constitution to overturn a decision of a state supreme court. But what if it’s a decision of a state supreme court that we don’t support? Look at what’s going on now with the use of the state constitutional amendment process around the country, particularly with reproductive freedom. The rise of the use of amicus briefs in state supreme courts is huge. It’s completely different from the way it used to be.

Just one or two more things. We have so much more literature now about state constitutional law. In the 1980s, everybody said, “Where do we look? What do we do?” Now we have books, there are lists of them; law review literature in every state; these spectacular new forms of state constitutional research — the State Court Report, the Behind the Bench [newsletter] that is put out by the State Law Research Initiative. These are almost instantaneous coverage of what’s going on in the state courts.

So the last thing I’d say, too, is it’s not about judicial interpretation of state constitutions, but the much more sophisticated use of the state constitutional amendment process has really risen a lot in the last five years, let’s say. So I think it’s exactly why we’re here: what is it, “the promise and the limits” of state constitutional law. And I think this will just continue throughout our history. Thank you.

Bannon: Thank you. And we’re trying to explore both the promise and the limits. That’s a great overview.

I want to build on a point that Bob was touching on about the fact that on the whole, while I think we’re certainly in a moment where state constitutions are more salient, on the whole, it’s been a relatively underdeveloped field. Particularly, in many instances, we’ve seen state courts interpreting their constitutions in lockstep with the federal Constitution. In most states, on most issues, that’s been the order of the day. And would love to hear more from perspectives of the panelists as to why. And so I’m going to, at least in the first instance, pull Justice Liu and then Judge Halligan and then Julie into that conversation to offer your perspectives.

Liu: Sure. So we’re moving now into interpretation. And I think it’s important to begin with a point that Judge Halligan made at the very beginning, which is: we should note that there are lots of provisions of state constitutions that simply differ from the federal Constitution. The federal Constitution — you know, I don’t have my pocket version; I have them actually all on my phone, so (laughter) I guess that obviates the need.

Halligan: Same size, though.

Liu: Same size, yeah. (Laughter.) And you know, the ones that are specific to states themselves have a variety of categorizations.

The way I would talk about it is, some of what is so prolix about the state constitutions is that they are very easy to amend, and a lot of things that are in state constitutions read like statutes. My favorite examples are: I think Alabama has something called their Amendment 492, which promotes the sale of catfish. (Laughter.) Florida has one in their Article 10, I think Section 21, which is about limiting cruel and inhumane treatment of pregnant pigs. I don’t know about the regular pigs; just the pregnant pigs. (Laughter.) So, anyway, you see there are some very specific things. And in the main, I think courts just view these provisions in the ordinary way that they might read any textual positive law, like a statute, and they accord it the proper place in the hierarchy of laws, and they interpret it accordingly. I think that’s pretty straightforward.

Then there are those provisions, like the education provisions, like the forever wild — I love that example. California maybe should have a forever — I think people already think California is forever wild. Maybe we don’t need that. But in any event, there are these expansive, more open-textured, let’s say, provisions that are specific to state constitutions. And I think one has to, as a state court judge, think hard about where these provisions came from. Just the usual stuff: What was the intent of the founders or the writers of these provisions? What kinds of state-specific circumstances were the drafters trying to respond to in effectuating these provisions?

In the case of California, we have this interpretive challenge in spades, because we have an initiative process that can amend the constitution with a mere 50 plus one. So there are constitutional initiatives with a fairly regular clip in California, and they all end up in court — all of them. So those, I think, have to be taken with a very state-specific lens. And we think about that in that way.

I think much of what Justice Brennan was writing about, though, and much of where the gravity of Professor Williams’ comments centered was on those provisions that speak to what you might call national or transcendent values that are not particularly state-specific. Julie mentioned the same-sex marriage litigations. Well, there are variations throughout the country in terms of how those were argued, of course, but take California, for example. When the marriage cases were decided by my court — before my time, but by my court — on equal protection grounds in California, it wasn’t because there was a California notion of equal protection. There is no California-specific notion/concept of equal protection. It’s the same concept of equal protection that judges everywhere, throughout our land, grapple with and try to interpret and effectuate through various kinds of doctrinal tools. But the fact is that people just disagree about what equal protection of the law means as applied to people who are gay and same-sex couples.

That litigation is actually a good example, because that’s a situation where the meaning of equal protection was percolated, essentially, through the states, and not only through judicial processes. It was done through ballot processes. It was done through legislative processes. And the very arguments that were made in all of these settings were of the same texture, of the same character. It wasn’t as if people were arguing that — well, here in California, we believe X, Y, and Z. They were talking about the fundamental rights of people, and arguing about what those should be. That is a national conversation. And state courts play a role in that national conversation because they are part of what I would say are the polyvalent kind of inputs that go into the development of our understandings of rights.

And so in this interpretive space, where we’re talking about these — you can think of many such things: equal production of the law; due process of law; some aspects of search and seizure as well — what is an unreasonable search and seizure? Some aspects of free expression. I would say some, because even in these areas, one has to be careful. California, for example, has different language with regard to freedom of speech than the federal Constitution. But there is overlap in the sense that judges are at some level trying to get to the heart of the matter, which is the same conversation in California as in many other places.

When we are in that interpretive space, my thought on that is judges — state and federal — are in a common conversation. We are in the same conversation. We are looking to the same legal materials for inspiration, for knowledge, for experience, for insight. And we do and should, I think, cite wisdom from wherever we can find it. And it is through that foment and that dialogue that we then inform, sometimes, the development of a national right, but sometimes not.

My basic point is, in the laboratories of democracy, Joseph Blocher at Duke has a very good phrase: We can all be — we can all have the laboratories of democracy, but on some of these things we are all part of the same research institution, a research institution devoted to elaboration of fundamental American rights that are not particularly state-specific, but nonetheless might admit a variation from place to place as part of a developmental process that enlarges our understanding over time. And to me that’s — I mean, I’m combining the interpretive question with the legitimacy question, because, back to the legitimacy question: Should state court judges feel shy about disagreeing with the U.S. Supreme Court? Again, the answer is no. It is your responsibility, I would say, as a state court judge not to disagree, but to apply an independent lens to these important questions, because that is why the Constitution specifies two levels of courts. If all we were going to do is lockstep ourselves with the U.S. Supreme Court, then what is the point of federalism?

So that’s — I think that’s the argument on interpretation that I would make.

Bannon: That’s great. Judge Halligan, do you want to reflect on why, to date, in many instances at least, we haven’t always seen that level of state constitutional focus or independent interpretation by state courts?

Halligan: Sure. And let me start maybe by offering to send Justice Liu a copy of our forever wild provision. (Laughter.) You can add it to your —

Bannon: There’s magic happening on this stage. (Laughs.)

Halligan: — to your telephone list of constitutional provisions. I think that there is some very interesting writing — some of it yours, Justice Liu, including in conversation with Judge Sutton — about these questions that I highly recommend to folks. And I would describe it as really offering some structural insights, which you heard Justice Liu just summarize, about the role of states in our federal government and the role of state courts in our overarching system of courts and justice. And I think that those are very valuable.

I would add a couple of practical points. One is, I think that there is some complexity in trying to figure out what state constitutional provisions mean, for a few reasons. I think, until recently, some of the materials might not have been that easy to access. I know now, for example, in New York, a fabulous resource — much of the New York constitutional materials from all of the conventions are now digitized. And so you can go online and find an extraordinary depth of information and resources that can assist in thinking about what those provisions mean.

I think also, in a way that is perhaps a bit different from what we see with the federal Constitution, there is both — there’s less scholarship. There is less development that underlies thinking about those state constitutional provisions to the extent they might be distinct from federal provisions. And I think there are also what I would call layered foundings that can make the interpretive task a little bit more complex.

And what I mean by that is, particularly given — a couple of folks mentioned the amendment process. So where you have a series of constitutional conventions over the years and a number of inputs that those individuals may be taking into account — for example, what’s happening in other states, what a federal protection might say, what intervening case law might say — I think that there may be more layers of the onion to peel in figuring out what the provision means. So I think that there’s some work to be done. And that, I think, might be a piece of it.

I think the other part is also practical that I would add, which is litigants might want to brief these issues if they want courts to address them. And I realize that there are practical constraints to that, resource constraints. So, for example, if you are a criminal defense lawyer, taking the time to do a deep dive on a suppression issue and what the state constitutional protection might be as distinct from the federal constitutional protection — I appreciate that might be hard to do at the end of the day or the beginning of the day. But I do think that litigants who would have state courts take a close look at those issues should present them in a way that is thought-out and do it at the outset of the litigation as opposed to simply down the road when it reaches an appellate court.

Bannon: Thanks. Julie, do you want to weigh in from the litigator’s perspective?

Murray: Yeah. So what I’m about to say is coming from experience as a plaintiff’s side attorney predominantly, although some work in criminal justice issues with respect to criminal defendants as well.

In my view, there are certainly sociological reasons why state constitutional law has been underdeveloped in terms of how we think about doing state constitutional law. But I think the practical reasons for that are probably more influential. And that is a function both of some things that litigants have to figure out and some things that courts do.

With respect to litigants, I think part of the issue is that, as someone who litigated in federal court a lot, state court feels a lot harder. The rules are often more complicated. Sometimes the rules don’t exist, or they are honored in the breach, much more so than in federal courts. So that is something that is difficult, even for people who practice in one state. Certainly, when you start looking at national groups that have a national litigation practice, the difficulty of practicing across states and state courts is exponentially greater.

When most people think of civil rights enforcement, you think of federal cases that are brought under Section 1983. That’s a statute that allows people to sue state and local officials when they violate federal rights. Most people don’t know that most states in the country do not have an analog to Section 1983 at the state level.

So that does a couple of things. One is that it creates complexity about where you can bring your claim, whether you can bring your claim, what kind of relief you can get. It is not all written down like it is in Section 1983 around the country. So it creates uncertainty, which many plaintiff’s lawyers — particularly in the private bar, who are, you know, private public interest attorneys — don’t like.

The other thing that I think has a huge impact from the lack of Section 1983 analogs at the state court level is that in many states, there is no possibility of recovering attorney’s fees if you bring and win civil rights cases on exclusively state constitutional grounds. And even the case law with respect to recovering Section 1983 fees where you have state and federal claims is, I will say, sparse in many places.

To give you one example, I litigated a few years ago a case in Iowa, a civil rights case in Iowa that went on for, I believe, a year roughly — well over a hundred hours of attorney time, probably 200. I was working in a pro bono capacity, and I think many, many public interest lawyers are, but I can tell you, after winning that case — hundreds of hours, probably — we recovered $300 in costs. So if you think about that from the perspective of a private plaintiff’s side attorney, it is no surprise that where you see really well-developed constitutional law often coincides with states that have Section 1983 analogs and that provide some possibility of recovery of attorney’s fees, because not everyone is able to do this kind of work for free.

The other thing that I will say — and again, this is a practical issue that comes up at least in affirmative constitutional litigation at the state level — is that if there are any . . . . If you’ll bear with me, I’m going to nerd out on federal court doctrine for just a moment. But there is a case, a federal case called Pennhurst, that held that you generally cannot sue state officers in federal court for violations of state law. So if you imagine, for example, you have a client who’s protesting and they want to use a bullhorn, for example, in a state park, the person representing that client has to decide: Do I want to bring a First Amendment claim in federal court? Maybe you think that’s the best place to bring that claim. If you do, and the people you are suing are state officials, you cannot bring the state constitutional claim in federal court. You’ll have to go to state court.

Now there are ways, potentially, around some of these problems. But I do want to emphasize, particularly if you want to incentivize enforcement of constitutional rights, the more uncertainty, the more complexity that you create with respect to how people can go about doing that, the less likely it is that you will be able not just actually enforce rights, but get the claims even in the courthouse door to do so.

And then the last thing that I will say about incentives is that I do think that there is a growing trend of amicus briefs at the state supreme court level. Certainly, we are trying to do more of that at the ACLU as well. But one of the things that we found — and I think the State Supreme Court Initiative is going to be releasing some findings on this in the coming months — is that in many states around the country, it is currently impossible to tell what issues are pending in front of those courts, what they are deciding, until the case is decided. Unless you parked someone at the clerk’s office to look at every paper filing or pull every filing, it is impossible to know what is at stake in those states, what the courts there are about to do with respect to people throughout the state. Even in some states that provide some information, it is still incredibly laborious to figure out in many states around the country. So I think court transparency is a huge issue at the state supreme court level with respect to how does the public even find out about important cases in order for it to participate. And hopefully do some of the briefing that I think is interesting to hear about, in order to get those claims decided in a way that is thoughtful and really takes into account all of the factors that you would need to. To diverge from federal law, you need great briefing. And so I think the court-transparency piece is an important one in getting to that goal.

Bannon: Thanks. Bob, did you want to jump in?

Williams: Just a brief point. I agree with Justice Liu that, yes, the state and federal courts are having the same conversation about fundamental national values, but I want to say that the conversations are coming from different perspectives. Often, you find a situation where SCOTUS has already decided to either deny a federal right or minimize it, and then when you come into state court, people say: “Supreme Court’s already decided that; why are you asking a state court to make it up or reach a result-oriented conclusion?”

Well, what SCOTUS has said comes from a national perspective. It decides whether to make decisions for all 50 states. As I taught it for years, are they going to cram a single rule down the throats of all 50 states? They’ll do it, they have done it, but they think about that, and they often write about it. So, often, that precedent that your opponent asks the state court to take as not — of course it’s not binding, but super persuasive, if you read it carefully, it’ll say, “Look, we’re not going to cram a single rule down the throats of all 50 states” — very explicit. And I think that’s really important, because the state court is deciding only for its own state. And there are lots of examples of this. I won’t go into them, but it’s a very different perspective.

Bannon: And, Bob, you’ve written really fascinating pieces about why there are structural reasons to think that, for exactly that reason, the U.S. Supreme Court as a general matter, or federal courts, would be underenforcing rights altogether.

Williams: Isn’t she smart? (Laughter.) Unbelievable.

Bannon: Just quoting you back. (Laughter.) Jerry, I wanted to invite you in the conversation.

Dickinson: Sure. I want to follow up on Justice Liu and Professor Williams on the conversation, the dialogue between federal courts and state courts. I think we oftentimes think of the model of constitutional law as the Supreme Court handing down a decision and the states following suit lockstep; in other words, the Supreme Court is leading and the states follow. But there’s another dynamic. It’s sort of a reverse polarity. We have examples of this, where state supreme courts follow — or the state supreme courts lead and the Supreme Court follows. There are a number of examples of this.

Mapp v. Ohio, the exclusionary rule. The Supreme Court reads into the Fourth Amendment an exclusionary rule and applies it against the states. What the Supreme Court did in that case was it looked to the state supreme courts that had already read into their state constitutions an exclusionary rule, and they said, “Look, these state supreme courts, they got it right, and we’re going to borrow, adopt, and we’re going to consult those opinions, and we’re going to use them. We’re going to essentially reach down, take them, and pull them into the federal Constitution as a way to inform federal constitutional law.”

Batson v. Kentucky, racially preemptive strikes, where the Supreme Court finds a prohibition against prosecutors striking Black jurors under the Constitution. And there, the Supreme Court again does the same thing — looks to the state supreme courts and what they’ve done prior to that decision and said, “Look, they got it right. We like what they’ve done. They’ve influenced and they’ve persuaded us that this is what we should do at the federal level.”

Another example, which is Justice Brennan in his opinion in New York Times v. Sullivan, the actual malice test under the First Amendment. Again, this wasn’t just created out of thin air; this was Justice Brennan looking to the Kansas State Supreme Court in a case called Coleman, where the Kansas State Supreme Court effectively had created an actual malice test under the state constitution. And most recently, Chief Justice Roberts did this in Moore v. Harper, where — talking about judicial review and the power that state courts have over judicial review now, but also in the past — he looked to pre-republic state court decisions on state constitutional grounds that invalidated state law. Pre-republic state courts. And Justice Roberts looked to those examples and said, “Look, this is evidence, this is — this helps to substantiate the argument that of course state courts have power to review actions by the state legislatures regarding federal elections — of course.” And he used that as a way to discard the idea of the independent state legislature theory.

And so, in other words, here we have these examples where state supreme courts are taking the lead, and the Supreme Court instead is following and really taking those doctrines and pulling them into the federal atmosphere in that sense.

Halligan: I’d add one additional, maybe slightly different iteration to that if I can, which I think is consonant with what Justice Liu and Professor Williams said: What do state high courts do with new questions? I think it was 2009 — maybe Judge Cannataro will keep me honest if I’m off on the date — the New York Court of Appeals heard a case about whether attaching a GPS device to a car bumper was a search under the Fourth Amendment and under New York’s analogous constitutional provision. And you know, the technology at that point was still quite new. And what the court determined was that, given the extraordinary pervasiveness of the surveillance that was now possible which had not been possible before, that this raised different kinds of concerns. And the court said, in a move that I thought was really interesting, that it was not going to presume to decide the Fourth Amendment question because it was an issue that the U.S. Supreme Court had not addressed yet, but it would address it under the state constitution. And it found that it was, in fact, a search. And I think about three years later, in a case called Jones, the U.S. Supreme Court addressed the question and reached the same conclusion. So I think, particularly in that sort of circumstance, where there is something that the U.S. Supreme Court has not had an opportunity to consider yet, you may see state high courts taking it on.

Bannon: Thank you. I’m going to turn to audience Q&A now. We have a lot of questions, a very engaged audience, so we’ll try to get through as many as we can. We had a number of questions — maybe one or two people in the audience may be aware that there was a U.S. Supreme Court argument this morning (laughter) about — so happy people came here instead — about Donald Trump’s eligibility for the presidency and to be on the ballot. And of course, the case before the U.S. Supreme Court originated in state court in Colorado. And so, I’ll turn to Jerry, and then if anyone else would like to chime in would be welcome, if you can talk about this perspective, maybe from the state court issue. There are a lot of questions about a potential patchwork that might emerge if state courts are deciding eligibility, and some of the ways that those issues are a part of understanding the Colorado case.

Dickinson: Sure. There was an amicus brief submitted by Akhil Amar and Vik Amar in the case, and in there, they cite Judge Sutton in his recent book. And they said, look, at the end of the day, what the Supreme Court should do in this circumstance — that is, who has the authority to enforce Section 3 of the Constitution – of the 14th Amendment, who can enforce this — it’s the state courts or it’s the states, leave it to 50 states to decide how they want to enforce it. That is, the Colorado State Supreme Court decided to kick Trump off the ballot; as a result of that, let state courts do this because, at the end of the day, federal courts shouldn’t be intervening and shouldn’t be overstepping the state courts in their interpretation of state law and in their interpretation of state constitutional law. And I think you see that in the Moore v. Harper decision, in which the Supreme Court reaffirms that idea that state courts should be left on questions of state election law and federal election law under the Electors Clause to do what they want, what they please, and what they think is right under their state law. And I think you see that playing out here.

And so there is a possibility that the Supreme Court comes down in this case and simply says, “You know what? We’re going to leave it to the state, the state courts,” just as we see with Colorado. And there, of course, you will then see patchworks of law across the United States kicking some candidates off the ballot and keeping some candidates on the ballot. And some may say that’s not good — we need uniformity; we need a conclusion on that. But others say that within our federalist system, this is judicial federalism at its best, and leave it to the states and state supreme courts to make that decision.

Bannon: Would anyone else like to jump in on that?

Williams: I’m a state con law guy. (Laughter.) Feels to me like it’s a federal question, clearly.

Bannon: All right. I’m going to combine a few questions that I think in different ways get to some of the judicial politics ideas that have been percolating through a couple of the discussions. There’s a question about, given the role of money in some judicial elections — and that’s becoming more of an issue in many states — how do we avoid reelection pressure or influence in terms of how judges are making their decisions? And then I guess I’ll combine that with a question about the interplay between state court decisions and popular feedback and opinions. In particular, we’ve talked a little bit about ballot initiatives as one way that that can be reflected, but what are other ways — and maybe in states that don’t have ballot initiative processes — that public opinion and feedback feeds into state constitutionalism? Anybody like to take those on? Justice Liu?

Liu: I think it’s useful to begin by understanding that the statistic I think Jerry gave — or, I think it was Jerry who gave the statistic that three-quarters of the states have elections for judges. So that’s true, and I think it should be noted that there’s a wide variety, though, of electoral mechanisms.

I see my friend and colleague Anita Earls is here from North Carolina. You can ask her about what it’s like in North Carolina. (Laughter.) It’s a little different in North Carolina, I suspect, where there are regular elections — six years, right? Ten?

Justice Anita Earls (North Carolina Supreme Court): Eight.

Liu: Eight, OK. Six, eight, ten. Eight. And in some jurisdictions, it’s even more frequent than that. And in some jurisdictions, it’s partisan, and it’s contested. And I’ve always wondered how my colleagues on those courts experience that. That’s a very different experience than, say, what we have in California, which is 12-year retention elections which are not partisan and not contested and usually — I say usually (knock on wood) — nonevents, right? I mean, we fly so low under the radar, nobody knows who we are. And largely, these elections, I think, are just a kind of barometer of how the public feels generally about officeholders (laughs), and there isn’t a whole lot more to it than that.

I was lucky to be retained by the voters a year-and-a-half ago. I got 64 percent of the vote. I don’t know why. (Laughter.) I don’t know what the 36 percent had against me, but that’s — anyway, that’s just, like, a status, that’s like a baseline. It’s just a temperature-taking of the electorate. That’s it.

I really would be curious about Justice Earls’s experience or other experiences of judges who have had more contested battlegrounds in terms of politics in the judiciary. But for us, we’ve been so lucky that this has not really been an issue in terms of how we think about our role.

Some of you know that California did have its own political moment with the judiciary some 40 years ago, when three members of our court were thrown out of office — Chief Justice Rose Bird, along with Cruz Reynoso and Joseph Grodin — ostensibly over the death penalty, criminal justice issues. But I say ostensibly because those issues are often used by advocates for other issues — economic issues, other issues that people care about. Anyway, not since then have we had very serious threats in — I mean, there may be some local races here and there. Our superior court judges also face election, as do our court of appeal justices. But in the main, we’ve been very lucky, I think, in California to have fairly calm waters.

What explains this? Well, I would say, we certainly decide our share of controversial issues. You know, we’re no different in that regard. But I think there are a couple things that actually are interesting.

One is that we have a very high rate of consensus on our court, so we are not a court that divides 4–3 or even 5–2 very often. And so the cue that’s taken from the public is that, you know, when we say what the law is, that’s what the law is. There is some virtue, I think, to having that unanimity.

Now, that has limits. And to be honest, I have had the track record of being the, quote, unquote, “most frequent dissenter” on our court. But that is saying nothing because if I dissent four times in a year, that already vaults me into the upper echelon. (Laughter.) If you ask the U.S. Supreme Court justices — oh, dissenting four times in a year, that’s nothing.

So I think different cultures of courts really matter. And this is where there’s a wide variety among the state courts. If you want to talk about politics in the judiciary, culture of courts and rates of unanimity — you know, types of polarization — I would say the only – even when the court had more ideological diversity than perhaps it has now, the court has always been somewhat of a mirror of the society, because they’re appointed by political officials and that kind of thing. I would say, if you ask me what are the polarities on our court, I’d say it has much less to do with anything left to right; it has much more to do with people who have been practicing attorneys and who have been superior court judges, as opposed to people like me who have been professors and then only appellate judges.

You can readily — Julie, I’m sure, can readily understand why that would be a perspective difference between those two types of profiles. People who have been, quote, unquote, “in the trenches,” have had to work in courtrooms, may have insights that are about the kinds of discretion and individualized judgments that are necessary; whereas people who have worked in academia and other places may be more biased towards rule of law values or broad-brush orientations towards the law. I’m giving you some stereotypes. But these are tendencies, and you can kind of sense them when people discuss a case.

And that’s interesting. That’s what makes it interesting. And that’s why you want a diverse set of people on an appellate bench, because you get this mix of perspectives.

Bannon: Thank you. Did someone else want to jump in, or —

Williams: No, go. Go, go, go.

Bannon: Please.

Dickinson: I’m just going to follow up and note that this idea of state courts as laboratories, you see this in, again, the variety of judicial elections. And so in Pennsylvania, for example, in order to get on the bench, you have to first run for the seat, and you run on a party — Republican or Democrat — and you raise money to do that. It’s a partisan election at the beginning, but then once you win the seat, after 10 years there’s a nonpartisan retention election. And so it’s sort of a hybrid approach in Pennsylvania, and the idea, of course, is hopefully, over time, while the jurist is on the bench, they’re further removed from political pressures and popular pressures, and then to retain the seat, it’s simply a nonpartisan retention election. You don’t have to dig back into the political thicket as a result of that. So variety, I think, in that laboratories of judicial elections is good and is helpful in how we approach this project.

Bannon: Thanks.

Williams: Just a very quick perspective on arguments to elected judges. One of the things you could say is — and I always ask the students to make this point — the people elected you to be a judge, and you’re looking at provisions in a state constitution that the people put in there voting. It’s not true for the federal Constitution. And you can even have the opposite argument: “Your Honor, my opponent is asking you to interpret this provision in a certain way.” You know what? There was an amendment on the ballot that would have done that textually and it was voted down. So the popular-sovereignty imprimatur that supports the provisions of the state constitutions can, I think, bring a unique state constitutional argument.

Bannon: Thank you.

Liu: Just one last thought is that I would say it’s sometimes said in this dialogue that the state court judges differ from the federal, life-tenured judges because, you know, elections, politics, and whatnot. But if anybody thinks that the appointment and confirmation of federal judges is less political (laughter) than the state judges, then they just haven’t been paying attention. (Laughter.)

Bannon: Thank you for that. We’re coming towards the end, so I want to give everybody the chance to have a quick last word. And I guess the question I’ll pose to each of you is — you know, we have quite an audience here. We have law students, scholars, practitioners, interested members of the public, other judges. What is something for members of this audience to do or be thinking about in terms of promoting this culture of state constitutionalism that we’ve been talking about today? I’m just going to go down the line. Julie?

Murray: So we haven’t talked about this a ton, but I will say, particularly for this audience, I think it is incredibly important that law schools teach state constitutional law. People can figure it out as they go, but it’s not ideal. And I think it would make a huge difference to training the next generation of attorneys who can brief and argue these issues well.

Bannon: Jerry?

Dickinson: I was going to follow up with a very similar comment. As vice dean at the University of Pittsburgh School of Law, I oversee the curriculum and many other aspects of the operation of the law school. And every year we make it a point to ensure that we have a course in state constitutional law. And increasingly, we were asking our constitutional law scholars — myself and a number of others — to teach some aspects and elements of state constitutional law in the first-year con law curriculum and course, because that’s important. So for the professors out there and for the students, I think it’s really important that at that very beginning stage of your career, you have some experience in learning about state constitutional law, because as we are all here today, this is an important project and one that isn’t going away anytime soon.

Williams: I was going to say the same thing, but — so I came up with something else real quickly. (Laughter.) Encourage your law students to write about state constitutional law, even if they don’t have a course. I wrote my law review note 50 years ago about state constitutional law and it’s been cited twice by the Florida Supreme Court as controlling authority. (Laughter.) So you can get in there doing that.

Bannon: Students, take note.

Halligan: I think all of that is exactly right: teach it, write about it, brief it, and also read about it. There is really a burgeoning array of rich and accessible literature, and I would dive into it.

Liu: I agree with all that’s been said. I would make a plea to the lawyers who are here that you should take these ideas and not just brief the legal issues, but really have two paragraphs to remind state court judges when you’re in state court of their independent duty to give meaning to the state constitution. And it follows, I think, from a basic postulate of federalism. And part of it is, you need to educate us; you need to educate the bench about all of this. And it’s not as much a part of our culture because we all went to the same law schools; we all had the same educations that are sort of skewed in these ways. And so I don’t think that message could be repeated enough, actually, and I would commend that to you.

Bannon: Thank you so much. And please join me in thanking our panelists for a wonderful conversation. (Applause.)

(End.)