Symposium: The Promise and Limits of State Constitutions
For much of the past century, the U.S. Supreme Court was the primary guardian of civil rights and liberties. In many areas, the Court is now backing away from that role, and legal scholars and citizens alike are scrambling to understand this new reality. This process has ushered in a new focus on state constitutions and the courts that interpret them. As has become clear, the 50 state constitutions, which provide numerous rights that do not appear in the federal Constitution, are critically understudied.
In February, State Court Report, the Brennan Center, and the NYU Law Review hosted an academic symposium on state constitutionalism. The two-day event (February 8–9) featured state supreme court justices, state solicitors general, scholars, practitioners, and other experts discussing a range of topics related to state constitutions, from judicial federalism and constitutional interpretation to democracy and abortion rights. The discussions opened on February 8 with remarks from Brennan Center president Michael Waldman and on February 9 with remarks from Helen Hershkoff, the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at NYU School of Law.
The law review will be publishing a series of essays by scholars who participated in the symposium.
Find videos and links to transcripts of the symposium’s panels below.
Panel 1: Judicial Federalism and the Status of State Constitutions
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
Link to transcript of the conversation.
Panel 2: Interpretive Methods in State Constitutional Law
This panel focused on how judges interpret state constitutions. The panelists — three active state supreme court justices — laid out different methods for interpreting state constitutions, explained why state constitutions should be interpreted independently of the federal Constitution, and discussed the many benefits of independent state constitutionalism, including the protection of civil rights and civil liberties.
Speakers:
- Justice Clint Bolick, Arizona Supreme Court
- Justice Anita Earls, North Carolina Supreme Court
- Chief Justice Loretta Rush, Indiana Supreme Court
Moderator:
- Jessica Bulman-Pozen, Betts Professor of Law, Columbia Law School
Link to transcript of the conversation.
Panel 3: Democracy in State Constitutional Law
This panel focused on the relationship between state constitutions and democracy. The panelists discussed how state constitutions promote democratic values, identified opportunities and challenges in using state constitutions to guard against vote suppression, gerrymandering, and attacks on direct democracy, and grappled with the potential impact of Moore v. Harper on state courts’ ability to decide democracy cases.
Speakers:
- Wilfred U. Codrington III, Associate Professor of Law, Brooklyn Law School
- Kareem Crayton, Senior Director, Voting Rights and Representation, Brennan Center Democracy Program
- Miriam Seifter, Professor of Law, University of Wisconsin Law School
- Carolyn Shapiro, Associate Dean for Academic Administration and Strategic Initiatives and Professor of Law, Chicago-Kent College of Law
- Sam Spital, Director of Litigation and General Counsel, NAACP Legal Defense Fund
Moderator:
- Wendy R. Weiser, Vice President, Brennan Center Democracy Program
Link to transcript of the conversation.
Panel 4: State Constitutions: A State Solicitor General’s Perspective
During this conversation, former Virginia Solicitor General Michelle Kallen interviewed North Carolina Solicitor General Ryan Park about the role of state solicitors general in our federalist system. They discussed their experiences appearing before state supreme courts as solicitors general and how state solicitors general contribute to the development of state constitutional law.
Speaker:
- Ryan Park, Solicitor General, North Carolina
Moderator:
- Michelle Kallen, Partner, Jenner & Block; former Solicitor General, Virginia
Link to transcript of the conversation.
Panel 5: State Constitutional Obligations: Access to Courts, Remedies, and Rights in Civil and Criminal Cases
This panel focused on how state constitutions can improve access to courts and remedies in civil and criminal cases. The panelists explored how state constitutions can increase access to justice for pro se litigants, discussed current state constitutional litigation to strengthen civil rights and the rights of criminal defendants, and grappled with some of the obstacles faced by state constitutional civil rights litigators.
Speakers:
- Sharon Brett, Legal Director, ACLU of Kansas
- Marcus Gadson, Assistant Professor, Campbell University School of Law
- Judith Resnik, Arthur Liman Professor of Law, Yale Law School
- Judge Albert Rosenblatt (ret.), New York Court of Appeals
- Robert Schapiro, Dean and C. Hugh Friedman Professor of Law, University of San Diego School of Law
Moderator:
- Hernandez Stroud, Senior Counsel, Brennan Center Justice Program
Link to transcript of the conversation.
Panel 6: Reproductive Rights in State Constitutional Law
This panel focused on the state constitutional landscape of reproductive rights post-Dobbs. The panelists identified emerging issues in state constitutional litigation over reproductive rights, discussed recent and upcoming ballot referenda to enshrine abortion rights in state constitutions, and assessed the promise and limitations of a state-based approach to abortion rights.
Speakers:
- Michele Goodwin, Linda D. & Timothy J. O’Neill Professor of Constitutional Law and Global Health Policy, Georgetown University Law Center
- Diana Kasdan, Director for Judicial Strategy, U.S. Programs, Center for Reproductive Rights
- Chief Justice Barbara J. Pariente (ret.), Florida Supreme Court
- Mary Ziegler, Martin Luther King Jr. Professor of Law, UC Davis School of Law
Moderator:
- Kate R. Shaw, Professor of Law, University of Pennsylvania Carey Law School
Link to transcript of the conversation.
Panel 7: The Politics of State Constitutionalism
This panel focused on the politics of state constitutionalism. The panelists introduced the audience to the political dynamics around state courts and state constitutions, discussed the role of money in judicial elections and efforts by state actors to retaliate against state courts, and laid out reforms to protect state judiciaries from political capture.
Speakers:
- Chief Justice Wallace B. Jefferson (ret.), Texas Supreme Court
- Michael S. Kang, Class of 1940 Professor of Law, Northwestern Pritzker School of Law
- Douglas Keith, Senior Counsel, Brennan Center Judiciary Program
- Chief Justice Maureen O’Connor (ret.), Ohio Supreme Court
- Robinson Woodward-Burns, Associate Professor, Howard University
Moderator:
- Meryl J. Chertoff, Executive Director, Georgetown Project on State and Local Government Policy and Law, Georgetown University Law Center
