Sunday, March 1, 2009
Professor Jason Mazzone (Brooklyn) just posted When the Supreme Court is Not Supreme on ssrn. This is a terrific article that covers an underexplored area: the proper role and actual effect of state courts interpreting the federal constitution. Mazzone's review is comprehensive, and his proposal is provocative. This is well worth a look; I highly recommend it.
Mazzone's central claim is that the "state courts, as a practical matter, have the ability, whether they have noticed it or not, to determine what the Constitution means with little or no oversight by the Supreme Court. In this sense, the Court is not supreme because authority is shared."
In getting there, Mazzone takes us through an exhaustive history of state court interpretation of the federal Constitution, focusing on five circumstances that gives rise to state court (not Supreme Court) supremacy: dependency of the federal Constitution on underlying state laws, the importance of factual determination to constitutional rulings, rules of preclusion, state court adjudication of criminal cases, independent and adequate state grounds to preclude Supreme Court review of a federal constitutional question, and state decisions "flying below the radar." He then takes us through "particularized discussions" of Fifth Amendment Takings Clause cases and criminal rights under the Fourth, Fifth, and Sixth Amendments (for reasons that become clear below).
Mazzone (rightly) claims that state court authority under these circumstances and in these areas means that in Constitutional matters we've focused our attention on the wrong Court. Mazzone:
Once we see that authority to interpret the Constitution is shared, the world of constitutional law and politics looks wholly different. Hard-fought battles over who serves on the Supreme Court seem excessive. Marching to the Court in support of this right or against that claim is less consequential. The modern fascination with the Court's seventy-odd decisions each year--instantly report, dissected, critiqued, turned into symposia--appears an almost unhealthy obsession. Divining the future by microscopic inspection of the Justices' every written and spoken word becomes improbable. . . . When authority is shared, we should worry less about the Supreme Court, and more about what is happening to federal constitutional law as it is developed and implemented in the state courts and in other venues.
Mazzone goes on to argue that "state court authority should be formally recognized" through a "formal rule that, stated in most general terms, permits state courts, when called upon to rule on federal constitutional claims against state government, to expand upon (but not narrow) federal constitutional rights as construed by the Supreme Court." He argues that such a rule would be consistent with historical practice and with Justice Stevens's suggestion to the Court "to refuse to hear cases against state government in which a state court has expanded upon the Court's own ruling on federal constitutional rights." Based on a balanced consideration of objections, he ultimately limits this proposal to Fifth Amendment Takings Clauses cases and criminal cases under the Fourth, Fifth, and Sixth Amendments.
Mazzone covers quite a range of material in this exhaustive and thoughtful piece. In fact, he really has two articles here: One on the history and circumstances of state court interpretation of the federal Constitution; and one on the proposal to formalize state court interpretation through a rule that gives state courts greater latitude in expanding rights against the state. Either one of these makes a good read; together, the piece is a delight. I highly recommend this.