State Courts, the U.S. Supreme Court, and the Protection of Civil Liberties
Howard, Robert M., Graves, Scott E., Flowers, Julianne, Law & Society Review
Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests.
(ProQuest Information and Learning: ... denotes formulae omitted.)
For a decade now, I have felt certain that the Court's contraction of federal rights and remedies on grounds of federalism should be interpreted as a plain invitation to state courts to step into the breach ... the diminution of federal scrutiny and protection out of purported deference to the states mandates the assumption of a more responsible state court role ... The Fourth Amendment has been most clearly targeted for attack .... (Justice William Brennan, James Madison Lecture on Constitutional Law at New York University School of Law, November 18, 1986)
Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries (Katz & Tarr 1996). One scholar argues that the European community's increasing federalism has led to greater individual rights (Lenaerts 1996:139), while another argues that the Canadian Charter of Rights and Freedoms judicialized civil rights protection, which has led to greater security of individual rights (Coder 1996).
Of course, this idea of greater protection runs counter to accepted justifications for federalism, which is often viewed as an instrument of group or state's rights (Katz & Tarr 1996). However, regional courts relying on regional constitutions can offer enhanced protection for civil liberties beyond the baselines established by a federal constitution and a national court (see Linde 1984). It is that possibility for increased protection that led Justice William Brennan, confronting an increasingly conservative U.S.Supreme Court (USSC), to encourage state courts to rely on state constitutional grounds as a strategy to increase and insulate the protections of the Bill of Rights. A state high court's (or SCOLR, for State Court of Last Resort) role as final arbiter of its own state constitution provides a useful, albeit limited, tool through which courts can accomplish this goal. During the last few decades, some judicial scholars and officials have viewed this position as an opportunity to enhance civil liberties. Given this impetus and some subsequent liberal state court rulings, many have asserted that an era of "new judicial federalism" was at hand (see Solimine 2002; Pulliam 1999).
However, subsequent research has produced little evidence that such a revolution has occurred in the United States (Rosenfeld 1988; Cauthen 2000). Undoubtedly this is because the use of regional constitutional protection is not as straightforward as advocates of federalism would suggest. In the United States, success depends on the actions of others to whom state court justices are accountable both within and outside their respective states. …