The U.S. Supreme Court’s History of Adopting State Supreme Court Guidance

When the U.S. Supreme Court struggles to find an appropriate source or applicable precedent when addressing vexing questions of federal constitutional law, it sometimes turns to state supreme courts for guidance. In those instances, the justices consult and then adopt state court interpretations of state constitutions as primary sources to draw meaning from the federal Constitution.

This practice of judicial federalization may appear to be, at first blush, counterintuitive. Traditional notions of American constitutional law have taught — and sometimes mislead — us to believe that as goes the Supreme Court, so goes the nation. But the story of American federalism is more nuanced than that. Recent academic scholarship and Supreme Court rulings suggest that the practice of federalization is embedded deeply in the DNA of our nation’s history and tradition.

For example, when the Supreme Court decided in 1961 to apply the exclusionary rule, which prevents the government from using evidence that was improperly obtained, to the states in Mapp v. Ohio, it first surveyed how several state supreme courts had developed that same rule under their state constitutions. Likewise, the First Amendment’s “actual malice” test adopted in 1964 in New York Times v. Sullivan was formulated by borrowing “a like rule, which had been adopted by a number of state courts,” most notably the Kansas Supreme Court. In takings cases, the Court crafted its new federal exactions standards in accord “with the approach taken by every other [state] court that . . . considered the question.” The Court exercised a healthy level of modesty and humility, explaining “since state courts have been dealing with these questions a good deal longer than we have, we turn to representative [exactions] decisions made by them.”

The Court’s 1986 landmark ruling in Batson v. Kentucky barred prosecutors’ racially motivated and unconstitutional peremptory strikes of Black jurors. The Court didn’t embrace the doctrine out of thin air. Instead, Batson followed the lead of the state courts, especially in California and Massachusetts, that had independently interpreted their state constitutions to prohibit race-based peremptory strikes.

The Court’s watershed rulings in Lawrence v. Texas and Obergefell v. Hodges were similarly influenced by the experiences of the state courts. In Lawrence, the Court acknowledged that its decision was heavily influenced by the trend in state courts interpreting “provisions in . . . state constitutions parallel to the Due Process Clause of the Fourteenth Amendment.” Justice Anthony Kennedy, in Obergefell, followed suit. In finding a federal constitutional right to same-sex marriage, Kennedy explained that “the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions.”

Despite these examples of the U.S. Supreme Court invoking the wisdom of state supreme courts as relevant, if not essential, sources to inform federal constitutional law, the Court is generally reticent about resorting to this practice too often. In fact, the Court has failed to articulate the reasons why it has occasionally done so. However, Chief Justice John Roberts’ majority opinion in Moore v. Harper last summer offers some compelling clues that may help account for the practice of federalization — that is, federalization is part of the DNA of our nation’s history and tradition.

In Moore, Roberts argued that the “independent state legislature theory” is incompatible with the principle of judicial review, because taking the theory to its logical end would deprive the state courts of their power to review the actions of state legislatures over federal election law, if not other areas of federal law. Then, Roberts engaged in judicial federalization to illustrate how state courts, as opposed to the U.S. Supreme Court, were the first to put the concept of judicial review into practice. He evoked Chief Justice John Marshall’s fabled Marbury v. Madison decision, noting that the Marshall “did not fashion [judicial review] out of whole cloth.” To illustrate his point, Roberts consulted seven pre-Republic state court rulings that invalidated state laws on state constitutional grounds. These were the primary, if not decisive, sources that reinforced the Court’s conclusion that state courts were, and always have been, vested with the power of judicial review over state legislative enactments, including contemporary legislative actions over federal election laws.

But, Roberts went further. He explained that not only did state courts exercise judicial review long before the Supreme Court got in on the action in Marbury, but the framers embraced the concept of judicial review during the debates at the constitutional convention. James Madison, for example, referenced the Rhode Island Supreme Court’s invalidation of state law to support the idea of federal tribunals doing the same. Elbridge Gerry cited several state court rulings to describe the history of setting aside laws that were against the Constitution. Delegates from Virginia cited their state courts’ exercise of judicial review as evidence for why courts in the new republic should enjoy those same powers. Gouverneur Morris, the infamous drafter and “dishonest scrivener” of the Constitution, wrote about the state court rulings and their implications for judicial review during that era.

Indeed, federalization is a feature, not a bug, of our constitutional order. Roberts’s Moore opinion and the Court’s federalization rulings in case like Batson, Mapp, Sullivan, Obergefell and Lawrence, share a special — but largely overlooked — common lineage with the practices at the founding. The framers similarly looked to the state courts and “their rulings under state constitutions to draft and interpret the federal Constitution.”

Today, there is a renewed public interest in the role of state courts and state constitutions in the face of an aggressive Supreme Court willing to roll back decades worth of federal constitutional protections. If the Court’s past examples of federalization, along with Roberts’s recent Moore opinion, are of any indication, we may be witnessing the revival of state supreme court rulings playing a pivotal and influential role in the outcome of more Supreme Court decisions.

Jerry Dickinson is vice dean at the University of Pittsburgh School of Law.