New Year, and Some New Courts

The start of a new calendar year often presents fresh opportunities. For appellate advocates, cases continue, and new ones develop. That would seem to make January uneventful – just a new month like any other month. Still, in at least some states, courts operate on a calendar-year basis. The end of December may be the end of a state supreme court term and often marks the issuance of the remaining cases of the term. January, then, brings a fresh set of cases and, possibly, new justices and chief justices. The impact of these changes is unpredictable. In some instances, things will continue as they have in the past; in others, significant change may occur.

Past experience with the U.S. Supreme Court and with attempts to avoid it offer some perspective. For example, the change represented by the Warren Court was revolutionary. It had become so trailblazing that state courts had difficulty keeping up and adopted what one scholar called “the drowsy habit of looking no further than federal constitutional law.”[1] In the late 70s and early 80s, the change in direction in the U.S. Supreme Court from the Warren Court’s heyday brought talk of a “New Judicial Federalism,” in which advocates were urged to refocus on state constitutional issues and state supreme courts to achieve their appellate goals. Prominent law review articles to that effect were written by Justice William J. Brennan, Jr.[2] and then-Oregon Justice Hans Linde.[3] A New Jersey supreme court justice even suggested that failing to brief the state constitutional issues fully and separately might be considered malpractice.

As I’ve written before, “[s]tate constitutions have distinctive language, histories, and provisions that combine with the unique nature of state police power and cultural orientations to produce singular takes on American constitutional jurisprudence.”[4] Notably, the New Judicial Federalism also received heavy criticism, with one professor labeling the courts’ emphasis on different state constitutional takes “a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements.”[5]

The New Judicial Federalism was not something new, though. Instead, it constituted a rediscovery of what state courts had previously undertaken. Many now-familiar federal constitutional holdings and doctrines were first developed in state supreme courts under state constitutions. Judge Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, reminded us of the critical role of state courts and constitutional principles in a 2018 book, “51 Imperfect Solutions: States and the Making of American Constitutional Law.” What advocates discovered in turning to state constitutions was a whole set of independent state law grounds to achieve victories not available under the U.S. Constitution and immune from U.S. Supreme Court review. The popular view was that the U.S. Constitution provided a floor of minimum rights, while state constitutions could provide a higher ceiling.

With a solid more conservative majority on the U.S. Supreme Court, and the aftermath of decisions on reproductive rights, guns, and even presidential immunity, some advocates have once again redirected their gaze at state supreme courts. The Brennan Center for Justice at NYU Law School has taken up its namesake’s reminder about considering state constitutions and now publishes the State Court Report, which follows state courts and state constitutional law. It is a valuable legal resource for appellate advocates.

Today, after appointments and elections this past November have placed new members onto chief justice seats and on various courts, new opportunities arise to test ideas and doctrines in the state courts. Justice Byron White once said that with each new member who joined the U.S. Supreme Court, a new Court was constituted. The same is likely true for our highest state courts.

[1]  A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va. L. Rev. 873, 878 (1976).

[2] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

[3] Hans A. Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev. 379 (1980).

[4] Robert S. Peck, For Trailblazers, When the U.S. Constitution Is Not Enough, 45 New Eng. L. Rev. 855 (2011).

[5] James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 763 (1992).