New Mexico Supreme Court Hints at a Big Constitutional Change

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In legal opinions, footnotes are often where the action is: a place for caveats, dueling barbs, and occasionally new legal principles. (There are U.S. Supreme Court cases known more for a footnote than the main holding.) They can also be a place where judges drop breadcrumbs for future litigants. That’s what the New Mexico Supreme Court recently did in footnote seven of Grisham v. Van Soelen, where the court invited “thoughtful and reasoned argument in the future” about whether it should reconsider the framework it uses to analyze state constitutional claims.

Grisham is significant on the merits: in September, the state high court concluded that partisan gerrymandering claims are justiciable under the New Mexico Constitution. Last Friday, a trial court applied the ruling and held that the state’s congressional map had been drawn with some partisan intent but was not so “egregious” that it violated the state constitution. Appeals are likely.

But from a state constitutional law perspective, footnote seven may be the even bigger story, with the court raising questions about whether it’s using the “proper method to ensure the people of New Mexico the protections promised by their constitution.”

New Mexico generally uses what it calls an “interstitial” approach to interpreting its constitution. If a litigant raises a state claim with a federal parallel (such as equal protection), the court must first consider whether the U.S. Constitution protects the right being asserted. If the right contained in the U.S. Constitution does not apply to the litigant, the court must then consider whether the analogous right in the state constitution should apply. In other words, the court must decide whether to interpret the state constitution differently from the U.S. Constitution. There are three established justifications for a New Mexico court to depart from the federal approach: a flawed or undeveloped federal analysis, structural difference between the state and federal government, and distinctive state characteristics.

If in a future case an enterprising litigant offers “thoughtful and reasoned argument” to move beyond this framework, what might a different approach look like? One option is to expand the set of reasons that justify departure from federal precedent. (As the University of Minnesota’s David Schultz has explained in State Court Report, state departure rules vary widely.) For example, the court could give more weight to other states’ constitutional interpretations.

Another option is to reject the interstitial approach altogether and consider state constitutional claims before looking at whether the federal constitution applies. Perhaps tellingly, footnote seven cites a book by Sixth Circuit Chief Judge Jeffrey S. Sutton, 51 Imperfect Solutions, which criticizes the interstitial method for “inverting the right sequence for considering state and federal arguments.” Sutton asks why state courts should consider federal constitutional claims before state ones rather than making state constitutional arguments “the first line of defense in individual rights disputes.”

This isn’t just a matter of what gets top billing: Sutton argues that the interstitial approach has discouraged the development of state constitutional law across the country. Litigants and courts, he argues, “will be less likely to duck independent assessments of the state claim if they consider it first.”

There are more reasons a state might consider giving primacy to state claims. Bob Williams of Rutgers has argued in State Court Report and elsewhere that looking to the U.S. Constitution as the starting point in state constitutional analysis “seems to give the U.S. Supreme Court’s approach a presumption of correctness that is misplaced.” After all, there are lots of reasons (including concerns about federalism) why federal courts may underenforce federal rights.

Tying state and federal law together can also cause issues when federal law changes. Indeed, while the Grisham court didn’t reject interstitial analysis as a general rule, it ultimately concluded that the principle wasn’t appropriate for the partisan gerrymandering claims before it because the federal law on the issue is “undetermined.” “In the event of subsequent federal development in this area of law,” the court explained, “the circumstances of New Mexico’s ensuing congressional elections could . . . be thrown into chaos and confusion.”

According to Sutton, only Maine, New Hampshire, and Oregon have adopted primacy, and Vermont and Washington use variations of it. But this may be a moment for courts like New Mexico’s to revisit first principles.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.