A Rallying Cry Against Lockstepping 

The overturning of numerous precedents by the Supreme Court in recent terms led the law professors behind the “Strict Scrutiny” podcast to quip, “Stare decisis is for suckers.” 

Their sarcastic punch line about courts following precedent has become a rallying cry for those who worry that justices have diverged from the practice of adhering to prior decisions. 

But what about state supreme court justices who have unnecessarily tied interpretation of state constitutional provisions to the U.S. Supreme Court’s interpretation of the equivalent provisions under the Constitution — a practice known as lockstepping? Stare decisis is not actually required of state court justices when it comes to following constitutional interpretation of similar federal clauses. It isn’t, after all, their precedent.

State court justices who insist on following the interpretations of a Supreme Court prone to swings in law have — even if inadvertently — interjected a harmful and preventable degree of uncertainty into their respective state constitutional jurisprudence. And in disregarding their constitutions’ unique meanings, they deny their residents additional rights and liberties. Indeed, a critical look at the lockstep approach reveals its implications for the rule of law, rights protection, and federalism itself.

It seems that a rallying cry against such lockstepping may be in order. 

Many scholars have stressed that state constitutions are distinct political documents that provide for and protect rights beyond those enshrined in the federal Constitution. At least one Supreme Court justice has shared similar views. In 1977, Justice William Brennan wrote that state constitutions “are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law." Even scholars with a favorable or neutral stance on the lockstep approach, such as Earl Maltz, acknowledge that “principles of state autonomy guarantee to the state courts the right to adopt any rule of law not inconsistent with the United States Constitution.”

Yet state court judges have often ceded their state judicial responsibility to independently interpret key provisions of their constitutions. As the Institute for Justice’s Anthony Sanders has pointed out, only one state court has opted to vary its interpretation of its contract clause from the one set forth by the Supreme Court. Similarly, the Montana Supreme Court, despite interpreting one of the youngest state constitutions (revised and ratified in 1972) has turned its unique state provisions into constitutional milquetoast by tying its interpretation of certain privacy provisions to Supreme Court interpretations. Other examples of state courts relying on federal interpretations abound. 

From a rule-of-law perspective, the tendency of state courts to use the lockstep approach has become more problematic as the Supreme Court’s jurisprudence swings from one end of the pendulum to the other with greater frequency. In the last couple years, the Supreme Court hasn’t been shy about overturning decades-old precedent. It discarded Roe v. Wade’s constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization. Then, in Loper Bright Enterprises v. Laimondo, it threw out Chevron deference, a long-standing doctrine directing federal courts to adhere to agencies’ interpretations of ambiguous language in statutes governing their work.

The rule of law hinges on stability and predictability, both eroded by the apparent increase in federal judicial flip flops. Theoretically, state constitutions should add to those attributes by giving residents unique and additional projections. When state courts instead turn to Supreme Court interpretations the potential for two sources of legal protections collapses into a single source. This outcome may not present rule-of-law concerns if the Supreme Court had a track record for adhering to its own precedent. But as long as the Supreme Court seems keen to overturn precedent, state courts ought to evaluate whether the lockstep approach hinders the rule of law. 

Blind adherence to federal interpretations also denies state residents additional rights and liberties afforded by unique state provisions. State constitutional framers may have meant for a provision to provide broader protections than the federal counterpart. By granting state residents only federal constitutional protections, state judges are leaving rights on the table. 

Finally, the lockstep approach threatens to diminish study and use of state constitutions — and, with those, principles of federalism. Montana again serves as an example of this point. The entire transcript of the 1971 Montana Constitutional Convention is available online. Its contents give unparalleled insights into the intent of the drafters with respect to each provision. So long as the Montana Supreme Court opts to instead look to Supreme Court case law, the will of those drafters as well as the will of the Montanans who ratified that constitution will be lessened. 

Each state constitution is a product of that state’s political community. To deny full expression of the provisions of those constitutions is a challenge to the federalism underlying our broader constitutional system.

As the Supreme Court kicks off its new term, scholars, practitioners, and jurists should engage in a thorough census of their respective state supreme court decisions to see when and to what extent their justices have relied on the lockstep approach. This evaluation would allow for a transparent and open conversation about whether use of that approach is adequately enhancing the liberty and rights of state residents. If it is not, then those same members of the legal community can and should offer alternative interpretations. 

And if such a review suggests that the current Supreme Court interpretation aligns with the best meaning of related state constitutional provisions, state courts should consider cementing that view in law rather than perpetually tying their interpretation to a Court that is experiencing doctrinal uncertainty. 

Kevin Frazier is an assistant professor of law at the Benjamin L. Crump College of Law at St. Thomas University and a senior research fellow in the Constitutional Studies Program at the University of Texas at Austin.

Suggested Citation: Kevin Frazier, A Rallying Cry Against Lockstepping, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 22, 2024), https://statecourtreport.org/our-work/analysis-opinion/rallying-cry-against-lockstepping