Michael S. Greve
Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit is the kind of judge every appellate lawyer with a brain and a half-decent case wants on his panel—really smart; attentive to fact; eminently fair-minded; sensibly diffident of any doctrinaire textualism-says-and-so-shut-up approach to judging. The rest of us should read Judge Sutton’s books. Within a span of three years, he has produced two substantial volumes on American constitutional development. The books, best read in tandem, are addressed and accessible to an audience far beyond the legal profession.
In 51 Imperfect Solutions (2018) Judge Sutton explored the role of the states and, in particular, of state courts in the development of individual rights under the federal and state constitutions. In his just-released Who Decides? he widens the lens and examines states’ experimentation in matters of constitutional structure—to his mind (and mine), a more important and reliable guarantee of freedom. In ten perceptive and immensely informative chapters ranging over the entire course of American history, Judge Sutton explores state experimentation with the judiciary’s selection and retention; the composition of the executive branch; the legislative branch; decentralization within the states; and the constitutional amendment process.
Constitutions aren’t straightjackets. They rather provide a framework for political and institutional struggle. The constant is that the American people are “suspicious of any branch of government having too much power and any group of people having too much influence.” We perennially recalibrate the institutional balance; and in that regard, Judge Sutton insists, there is a great deal to learn from the states. Indeed there is.
Federalism discussions suffer from a lamentable temptation to start with broad, normatively loaded and then-never-questioned presumptions. The Founders had a whole theory as to why the general (i.e. national) government would be systematically better—less mutable, more deliberative, more public-spirited—than the faction-ridden states—those “wretched nurseries of unceasing discord,” in Hamilton’s fabulous phrase. Others insist that state government will be systematically better. Instead of a theory (even one of doubtful validity), most such armchair statespersons proffer cant about “government closest to the people,” “subsidiarity,” federalism’s “numerous advantages,” and the like.
Judge Sutton indulges no such generalizations. He is a casual but careful empiricist; and his federalism, one might say, is a federalism without romance. Sometimes, he observes, states have done better—individually or on average, and in terms of rights or structure—than national institutions. Sometimes they have done worse. It is hard to discern any consistent pattern, and “better” or “worse” is often a matter of judgment. But there is at least one very good reason to tolerate a great deal of state experimentation in matters of constitutional rights and structure: if government has to screw up, as invariably it will, it’s best not to do it all over the place, all at once.
Duh? Tell that to the U.S. Supreme Court, which has been plastering the country with copious but intensely controverted rights. Or tell it to the U.S. Congress. Electoral “reforms” currently proposed by one of the parties would foist independent redistricting commissions upon all states. Apart from whether that is the kind of “time, place, and manner” regulation authorized by Article I or for that matter “appropriate” 14th or 15th Amendment legislation, experience recounted in Who Decides? and elsewhere shows that such commissions have been a relative success in some states and a flaming disaster in others. Therefore, let’s mandate them? On second thought, let’s not. Much better to heed Judge Sutton’s insistent reminder that serious error costs will afflict even the best-intentioned interventions.
Isomorphism or Variegation?
In PoliSci lingo, there’s a fair bit of institutional isomorphism in American federalism: states tend to copy federal institutions. All states except Nebraska feature a bicameral legislature—not for any constitutional reason, and surely not for federalism reasons. And the folks who built statehouses evidently all thought that those edifices had to look more or less like the U.S. Capitol. However, Judge Sutton powerfully demonstrates that in terms of constitutional design and development, states have charted their own paths in meaningful ways. Above all, state constitutions are uniformly more democratic than the federal Constitution.
The great majority of state judges are elected or else appointed but subject to retention elections. State executives aren’t unitary; they feature a governor, an independently elected attorney general, and often other elected officials. State legislatures are subject to procedural, transparency-enhancing mechanisms—such as public-purpose and balanced-budget requirements—that have no counterpart in the U.S. Constitution. States have initiatives and referenda. The U.S. Constitution is, or has become, well-nigh unamendable; state constitutions are permanent construction sites. Viewed as an institutional whole, the U.S. Constitution is actually very democratic, perhaps to a fault—just not in our national councils.
The observation, while not entirely novel, is here laid out with copious illustrations and trenchant insights by a patient, thoughtful, and judicious constitutionalist. Rightly and importantly, Judge Sutton explains that “democratic” institutions that might make sense at the state level may not make sense at the federal level. State governments do not have to wage war (in fact, they’re not allowed to) or conduct foreign diplomacy. Thus, they can more easily afford, though not always to good effect, a hydra-headed executive that would be intolerable at the federal level. Similarly, one might think that elected state judges, what with their democratic mandate, should be even bolder constitutional experimenters than the U.S. Supreme Court. If studies nonetheless suggest that judicial elections have prompted less rather than more judicial review, that may be (Judge Sutton cautiously speculates) because state courts, operating as they do under easily amendable constitutions, feel less pressure than does the U.S. Supreme Court to act as a rolling constitutional convention.
Judge Sutton’s discussion of administrative law provides a particularly compelling illustration of how and why a deep dive into the states’ constitutional affairs proves productive. Building on recent scholarship, Judge Sutton explains that many state courts enforce a nondelegation doctrine that is moribund in federal courts. Moreover, few state tribunals have followed the federal courts on Chevron deference, and some states have barred it by legislation. To which one might add: quite a few states have created tribunals that look a lot like actual administrative courts, as distinct from the federal administrative adjudicators whose so-called judgments are subject to revision by the agency that appointed them in the first place. The rule of law seems more alive in the states than under the federal APA.
The pattern is perplexing, Judge Sutton notes. It’s one thing to let some state agency, whose director may have been elected, to exercise local police powers over a limited domain. It’s a very different thing to let federal agencies extend the Clean Water Act’s reach to every mud puddle where some one-eyed duck might alight—and then to give deference to that agency’s “expert” judgment and interpretation of an open-ended statute. “A striking feature of American administrative law,” Judge Sutton puzzles, “is that the government that tends to be the most permissive when it comes to express and implied delegations of authority is the government with the broadest powers.”
Now there is a productive thought that is well worth pursuing. Judge Sutton’s books contain and provoke lots of those thoughts.
Sutton resists a peculiar kind of institutional isomorphism—the habit of all but a handful of state courts, in cases that present federal and state constitutional claims, to consider the federal claim first and the state claim as a mere afterthought.
Federalism’s Dynamics: Say More, Judge
“States as Laboratories of Constitutional Experimentation,” reads the subtitle of Who Decides? Respectfully, Judge, I don’t think the metaphor reflects quite what you seem to suggest.
The overused “laboratory” phrase comes from Justice Brandeis’s dissent in New State Ice (1932), where the Court’s majority mowed down an Oklahoma statute creating a private monopoly over the ice trade as bereft of any public-regarding purpose. The dissent is an intellectual embarrassment. It is economically illiterate: if there’s one thing we need not and should not experiment with—other than perhaps virus enhancement—price and entry controls spring readily to mind.
The dissent, moreover, is deeply dishonest. Justice Brandeis’s “experimentation” had nothing to do with damage limitation, error costs, or preference satisfaction for citizens of wildly different states. Brandeis consistently opposed conservative state experiments; never viewed Progressive state experiments as anything but an opportunity to go national; always deemed state competition for productive citizens and enterprises an evil to be suppressed; liberated in-state plaintiffs and state courts to “experiment” on out-of-state commercial actors; and in his Erie Railroad opinion instructed federal courts to transport the states’ parochial, exploitative doctrines into diversity cases.
That version of federalism has long become ours. Congress has created some 1,200 federal funding programs that “incentivize” laggards to adopt progressive states’ splendid experiments (or else, lose gobs of money). As for the wages of Justice Brandeis’s theory of federal jurisdiction, behold the multi-district opioid litigation against pharmacy chains, based mostly on exotic state law claims but pending in a federal district court in Ohio: a flash mob smash-and-grab in legal garb.
Judge Sutton knows all this, even though he does not spell it out. Aside from a few occasional gestures, he ignores our federalism’s dynamics, for perfectly defensible reasons. In the state constitutional domains that are his topic, the contagion and leverage effects Brandeis sought to maximize are pretty minimal. States borrow and copy from one another in matters of both rights and structure: see e.g., gay marriage and term limits. National political constituencies seek to exploit that dynamic and innovations come in waves. Those dynamics, though, may work for good or ill, and it is hard to imagine a federalism that commandeers states to not follow sister-state’s examples.
Somewhat less convincing to my mind is Judge Sutton’s take on state courts’ role in constitutional adjudication. He resists a peculiar kind of institutional isomorphism—the habit of all but a handful of state courts, in cases that present federal and state constitutional claims, to consider the federal claim first and the state claim as a mere afterthought. That m.o. in turn produces what Judge Sutton calls “lockstepping”—that is, a tendency to import the federal courts’ understanding of federal constitutional law wholesale into the state constitution. Judge Sutton urges state courts to prioritize the state law claim; to address the state constitutional materials independently; and to move on to the federal claim only if the state law claim does not suffice to afford the plaintiff the full relief he, she, or it is seeking. The intended point is to dampen the force of what Judge Sutton calls “top-down” constitutionalism.
I can see some advantages to that approach. One advantage, which Judge Sutton charitably skips because it is way too esoteric for his intended audience: the Supreme Court will decline review of state court judgments—even when they contain federal claims and defenses—if the judgment below can be supported on “adequate and independent” state law grounds. Frequently, though, you can’t tell. Suppose the Michigan Supreme Court says: “Under the Michigan Constitution ‘establishment of religion’ means the same as under the federal Constitution. Therefore, result X.” Was that decided under state law? Federal law? (General presumption: federal, unless the state court plainly stated otherwise. Unless that statement was intended to evade review. See how helpful this is?) Judge Sutton’s proposed approach would substantially reduce those problems, to the great relief of Supreme Court clerks who have to write cert memos.
Still, I remain unpersuaded. The obvious objection is that the proposal pushes towards Marxist-Brennanist constitutionalism. In a 1977 law review article, Justice Brennan—confronted with a more conservative U.S. Supreme Court, and in the spirit of one-way Brandeisian experimentation—urged state courts to treat federal rights guarantees as a floor (they have to), and then to go to town on more expansive state constitutional claims. That is not a world of experimentation and variegation. It is a one-way ratchet, and it presumes that a rights-richer world is ipso facto a better world.
Judge Sutton squarely addresses the point. Justice Brennan, he writes, sent the wrong message. An independent state court examination of the state law claim (first) is worth having even if it turns out that the state constitution provides less protection than federal law. Frankly, I don’t quite see it. The possible efficiency gain—the message to prospective litigants to forget about pleading those claims going forward—is offset by the net loss of having state judges rattle through claims that won’t matter one way or the other. That sort of inquiry, I suspect, is bound to produce free-form musings and, if anything, push litigants yet further into “lockstepped” federal claims.
Judge Sutton’s far more substantial response is that Justice Brennan was the wrong messenger for the right message at the wrong time. More constitutional rights under state law need not mean more Progressive rights. It may also mean more robust protections for libertarian rights that are woefully under-protected under the Supreme Court’s Constitution—say, property rights, or perhaps free exercise claims. Hence, the structural proposal to beef up state constitutional law is politically neutral; and when we don’t know which way things will cut, we should opt for variegation. Should we?
Surely, state courts have no reason to import federal structural reasoning—say, on the separation of powers—into their state constitutions. But as Judge Sutton demonstrates, that rarely happens: after all, the state courts are interpreting their own instruments. By way of example: “standing to sue” is a constitutional, separation-of-powers requirement under federal law. State courts have far more liberal rules, and some states permit courts to issue “advisory opinions” that the U.S. Supreme Court deems categorically barred. Nobody thinks that “the judicial power” must mean in state constitutions what it means in Article III.
In the rights domain, in contrast, it is difficult to escape the grim logic of the Brandeis-Brennan agenda. Even supposing that a rights-richer constitutional culture will on balance prove liberty-enhancing—argumentum datum, non concessum—it won’t be neutral. A state court ruling to the effect that a state equal protection clause entails rights for some federally unrecognized class will hold up: nothing much the feds can, would, or should do about it. Contrariwise, a ruling to the effect that your land is really yours and can be taken only for a use that is genuinely public will have bite in eminent domain cases.
Only until the feds ordain that some bird might want to build its nest where you want to build your house. The liberty to do as you wish with your land or your company—without harming others—has been compromised and fenced in at all ends by federal, state, and local land use regulations, health and safety statutes, environmental statutes, anti-discrimination laws, labor laws, and much else besides. Perhaps that is all the more reason to foster state court experimentation. But even a full-scale, hard-to-envision state-level Lochner revolution would operate only against state law and leave federal regimentation untouched. In short, I fear that experimentation in this particular laboratory will be sharply asymmetric; and that the “rights” it generates will further erode citizens’ freedom to go about their business without undue restraint.
I hope I am wrong about that. If anyone can persuade me, it is Judge Jeffrey Sutton.