By Duncan Hosie / Special To The Washington Post
Liberals have good reason to despair over the Supreme Court.
Transformed by President Donald Trump’s three appointments, the court seems poised to roll back abortion rights, gut climate change regulations and block blue states from enacting even modest gun control laws. And it won’t stop there. In the coming years, legal experts expect the court’s conservative supermajority to erode the rights of criminal defendants and immigrants, further neuter the Voting Rights Act and restrict racial justice remedies like affirmative action.
There are no easy fixes for those dismayed by the court’s direction. But liberals still have an avenue to protect rights they see as fundamental: state courts and constitutions. As the Supreme Court retrenches, state courts can be bulwarks of liberty; if Democratic governors and voters prioritize putting liberal judges on the bench.
Long before the adoption of the federal Constitution, colonies (and later, states) pioneered the protection of individual rights through their charters and constitutions. These daring documents reordered the people’s relationship to government. Two striking examples: The Massachusetts Body of Liberties — enacted in 1641 — safeguarded the rights against double jeopardy, to trial by jury and to petition. And Vermont’s 1777 Constitution prohibited slavery, something the federal Constitution would instead institutionalize.
When the Founders converged in Philadelphia in 1787 to write the federal Constitution, they drew heavily on state constitutions. The first eight amendments of the Bill of Rights and the Constitution’s solicitude for structural rights, in fact, originated in state constitutions’ rights-bearing features. In the words of historian Gordon Wood, state constitutions helped bring forth “the primary conceptions of America’s political and constitutional culture.”
And the Founders didn’t see the document they drafted as superseding these state constitutions either. Rather, it set a floor to which states could add rights. As Alexander Hamilton put it in Federalist No. 17, the states would remain “the immediate and visible guardian of life and property.”
By 1868, state constitutions protected more than 100 individual rights. Some of them had clear analogues in the federal Constitution, but many did not. Most states, for example, expressly protected the right to public education. And individual states protected rights that few (or no) other states did. Rhode Island’s constitution, for instance, safeguarded the presumption of innocence; the only state constitution to do so explicitly. It’s no surprise, then, that, as 6th Circuit Court of Appeals Chief Judge Jeffrey Sutton has noted, “most individual rights litigation for roughly the first 150 years of American history was premised on the state constitutions and arose in the state courts.”
After 1868, however, state constitutionalism’s dominance faded thanks to the 14th Amendment, ratified that year, and the rise of the incorporation doctrine; which gradually applied the Bill of Rights to the states. In the 20th century, the burgeoning federal government also rendered state governments and state identity less important.
By mid-century, academics dismissed state courts as parochial and peripheral to the crux of constitutional law. The liberal Supreme Court led by Chief Justice Earl Warren expansively interpreted federal rights (which largely applied to state governments by then) and restricted the scope of state governmental conduct. At the same time, most state courts interpreted their state constitutions narrowly by comparison. This asymmetry made much of state constitutional law seem superfluous.
Even so, state supreme courts remained important in one key regard: They could be venues for articulating legal norms and theories that changed the understanding of federal constitutional rights over time.
California, which had a liberal supreme court for much of the 20th century, illustrated this phenomenon well. From the 1950s to the early 1980s, the California Supreme Court issued pioneering decisions that expanded civil liberties, environmental protections and consumer rights.
Perhaps the best example came in 1948 when California’s justices invalidated the state’s ban on interracial marriage in Perez v. Sharp; the first time in the 20th century a court voided a state’s anti-miscegenation statute because, in the justices’ judgment, it violated the federal Constitution. It took the U.S. Supreme Court two more decades — until Loving v. Virginia, decided in 1967 — to reach the same conclusion. When it did so, it cited Perez to justify its constitutional analysis, demonstrating how the California Supreme Court had shifted the parameters and possibilities of constitutional discourse.
And Perez was but one of many innovative decisions where the California Supreme Court influenced either federal constitutional doctrines or those in other states during this period. Its decisions in the 1950s, for example, prodded other states (and eventually, the U.S. Supreme Court) to adopt the exclusionary rule, a doctrine that makes unconstitutionally obtained evidence inadmissible at trial.
The California Supreme Court even trailblazed on what has become the hottest button constitutional issue of our time: abortion rights. Four years before Roe v. Wade, California’s justices drew on both the state and federal constitutions to recognize the “fundamental right of the woman to choose whether to bear children” in People v. Belous.
This decision came just as the death of the Warren Court dramatically raised the stakes of state constitutions. Between 1969 and 1971, President Richard Nixon fulfilled a campaign pledge to push the Supreme Court rightward. His four appointments — Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist — generally rejected the novel rights claims that had found purchase with Warren and his similarly minded colleagues during the 1950s and 1960s.
Rather than give up on the Warren Court’s constitutional vision, one of its architects urged a renewed focus on state courts. In 1977, Justice William Brennan criticized his peers for pulling back from the Warren Court’s equal protection and due process doctrines. He praised state courts that resisted this tendency and encouraged others to join them. “With federal scrutiny diminished,” Brennan wrote, “state courts must respond by increasing their own.”
Liberal state court judges responded by refining Brennan’s intellectual framework and tailoring it to their states’ histories and traditions. For example, in 1983, the Supreme Court (over the dissent of Brennan, Thurgood Marshall and John Paul Stevens) relaxed constitutional standards that governed the determination of probable cause for issuing a search warrant. The following year, however, the Massachusetts Supreme Judicial Court used state law to reject this ruling. The high court in Massachusetts ruled the Commonwealth’s constitution “preceded and is independent of the Constitution of the United States.” And it provided “more substantive protection to criminal defendants” than did the Supreme Court’s reading of the federal Constitution.
Massachusetts was not alone. An ocean away, Hawaii’s Supreme Court construed its state constitution to issue new protections for the environment and against self-incrimination and coercive police searches; decisions that expressly departed from recent U.S. Supreme Court rulings. Hawaii’s highest court consciously understood that their decisions derived from ideological, rather than methodological or interpretive, differences with the Burger Court. As Hawaii’s Chief Justice William Richardson tartly remarked, “We’re still followers of the Warren and Brennan opinions, because they’re heroes of ours.”
As the U.S. Supreme Court has drifted steadily to the right under Chief Justices Burger, Rehnquist and now John G. Roberts Jr., some state constitutions and supreme courts have continued to be havens for those seeking more expansive interpretations of rights. To wit, the Massachusetts Supreme Judicial Court sparked a revolution when it held the Massachusetts Constitution protected same-sex couples’ right to marry in 2003; a full 12 years before the U.S. Supreme Court’s Obergefell v. Hodges decision.
There are limits, of course, to state constitutionalism as an avenue for liberals to circumvent the conservatism of the Roberts Court. For one, while state court judges can protect rights that the Supreme Court doesn’t acknowledge, they can’t overrule the Supreme Court’s reading of federal law or the U.S. Constitution. Additionally, unlike their federal counterparts, most state court judges face some type of electoral accountability. This discourages bold rulings that protect unpopular groups’ rights. And finally, many state Supreme Courts lean right, and conservatives (just as much as liberals) can frame legal claims in the language of rights. Look no further than recent expansions of gun and religious rights.
These drawbacks are real. But if liberals prioritize turning voters out in judicial elections and appointing liberal justices in states where they are appointed, state courts can give voice and legal effect to the egalitarian and small-d democratic values forsaken by today’s Supreme Court. In an era of Alito and Kavanaugh, state courts can infuse American law with a dose of Brennan and Marshall.
Duncan Hosie is a third-year student at Yale Law School who researches constitutional law and political movements. He previously was a Marshall scholar at the University of Oxford, where he received a master’s degree in history.
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