State Constitutional Law has Fair Weather Friends

The movement toward robust state constitutional review — sometimes called, if a bit imprecisely, independent state constitutional interpretation — began in earnest with the important advocacy of the late Justice William Brennan in his seminal 1970’s article in the Harvard Law Review. This built, of course, on an edifice set by imaginative state supreme court jurists, most of whom are scarcely remembered by mainstream constitutional law theory, much less our students. And yet for those of us who have long toiled in the fields of state constitutional law and theory, we remember that the effort to build a truly original and impactful state constitutionalism, for the benefit of our larger constitutionalism project in the United States, has been cooking on high heat for a half century’s time.

Those of us in the cognoscenti also recognize that the appeal of independent state constitutional interpretation often tracks partisan political efforts. In the latter part of the 20th century and into our new century, independent interpretation has often invoked to protect individual rights, especially free speech and equality The protection of same sex marriage, for example, began with some progressive state supreme courts, as did the later the efforts to protect property rights after Kelo. The current turn toward state constitutional law owes much to the Supreme Court’s decision in Dobbs. After this decision, left-leaning organizations such as the Brennan Center have pushed hard the narrative that state courts could and should use their discretion to protect significant individual rights despite the federal courts’ conservative retrenchment.

There is nothing remarkable about this nexus between legal strategy and constitutional theory. Old timers like me can nonetheless smirk at least at the rediscovery of state constitutional law and independent interpretation by liberal legal scholars and lawyers who are working hard to press state courts to employ their power to advance rights-forward views of state constitutionalism in order to combat federal neglect. And, to be sure, conservative scholars and lawyers have a playbook that would deploy state constitutional interpretation to ensure the establishment and maintenance of conservative results through independent approaches to reading and applying their Red state constitutions.

The pearl-clutching of Virginia (and other) Democrats seems to me another matter entirely, or least a more transparent effort to yoke theory to a certain version of constitutional hardball. Last week the Virginia supreme court issued a 4-3 ruling in which they interpreted “elections” to require something mor than the eleventh-hour enactment by the legislature of a redrawn Congressional map. Let me say first that I am not convinced by the majority’s arguments and so I think the case wrongly decided. The dissent raises a number of, to me, strong arguments based upon the Virginia Constitution’s text and some residue of common sense interpretation and the court majority’s response seem rather weak at parts. Beyond that, I cannot and will not say anything about the partisan motivations of the four in the majority, nor of the three in dissent. The opinion, at bottom, is within the boundaries of reasonable constitutional argument, and in some existential sense is a fairly workmanlike, and at times even boring, exegesis on the meaning of elections under the Virginia Constitution. Importantly as a matter of judicial federalism, there is nothing in the supreme court’s opinion that ensures that such a reading would be or will be compelling to other states that will consider similar redistricting shenanigans before the next Census is completed. This is, in the end, an example of independent state constitutional interpretation, meaningful for Virginia and only for Virginia.

Yet of course this decision has enormously important political effects. Therefore, Democrats have raced to the Supreme Court in an effort to get SCOTUS to overturn this effort. The arguments are wholly implausible, and it is hard not to see the Commonwealth’s efforts as anything other than a hail mary, hoping that the football will bounce around barely cogent legal arguments until it might fall haphazardly into the hands of a majority of the justices. The principal argument rests on a version of the so-called independent state legislature theory that was decisively rejected in Moore v. Harper. The sliver of hope reflected in the Court’s comment there that some federal constitutional protection is available when the state court has “arrogated judicial power” to itself is surely extinguished here, where the state court has engaged in normal (even if to many of us, including the dissenters, as unpersuasive) constitutional reasoning. Not to put too fine a point on it, but accepting the Commonwealth’s argument essentially eviscerates independent state constitutional interpretation, as it subjects state courts to the judgment of federal courts on matters that are entirely the province of state law. Or, to put this issue somewhat more charitably, it widens beyond sensible reason this ostensible exception to the foundational idea that federal courts will not subject state courts to second guessing when the fulcrum of the issue is the state constitution.

To be sure, Michigan v. Long introduces some potential ambiguity to this matter. Therein the Court held that if the state court is basing its decision on what is really federal law, then they can’t hide under the cloak of independent interpretation, but should be subject to the federal courts’ surely superior view of what federal law requires. Cleverly, the Commonwealth looks to Long in their SCOTUS appeal, arguing that the Virginia supreme court based its decision on an erroneous reading of federal law. This post is long enough already, so I will leave the reader to read the court’s lengthy opinion on her own, to see whether she agrees with my assessment that this argument is risible. The supreme court clearly bases its decision on its interpretation of what it believes the Constitution of Virginia demands. Michigan v. Long ultimately provides no support for the state’s argument, and is bound to fail.

So much for the Commonwealth’s hail mary. Lawyers gotta lawyer, and there is nothing especially unethical nor profoundly hypocritical in the state’s attempt to seek relief (throw itself at the mercy?) of the Court at this last proverbial minute. The other effort, however, is a bridge too far. Indeed, if the New York Times hadn’t reported this effort, I wouldn’t have believed it. Apparently a critical mass of Democratic operatives are pushing to have the supreme court upended by imposing retroactive age limits on the justices, the result of which is that the justices in the majority would be bounced from office and immediately replaced by enough justices to reach a quorum and, more to the point, justices who could be depended upon to quickly reverse course and uphold the legislature’s map.

This will go nowhere, it almost goes without saying. But let me suggest that this version of constitutional hardball is especially unattractive, precisely because it goes to the heart of what the strange bedfellows of liberals and conservatives — covering a spectrum from Justice Brennan to Chief Judge Jeff Sutton, and many others in between — have been advocating more or less consistently for now nearly a half century, and that is the virtue and value of a truly independent approach to state constitutional interpretation. Given the smaller scale of states in our overall polity, it is naturally convenient for hardcore partisans playing this sort of hardball to manipulate state political processes to accomplish nakedly political aims. That my post focuses on Democratic strategies in Purple State Virgnia shouldn’t blind us to the fierce efforts of MAGA Republicans to likewise weaponize various political and legal arguments to capture the apparatus of their states in order to advance raw partisan agendas.

That it is happening all over is regrettable. But let me say that the reason it is regrettable is not because it disturbs the pristine character of state constitutionalism and our judicial federalism. Let me not clutch my own pearls here. Rather, the reason is it disturbs an equilibrium (political + legal) that has reflected the common agenda and objectives of most parts of our political ecosystem for a long while now and, with it, has strengthened federalism and the comparative advantage of state constitutionalism and state constitutional jurisprudence in a time in which the turbulence of national politics has threatened the values of federalism that is reflected in our still durable and still potent constitutional order. Independent state constitutional interpretivists need real, not fair weather, friends.