You know what they say in show business: never follow an act with little kids, puppies, or chief justices. But here I go anyway. Before I proceed, however, for the benefit of our students I would like to acknowledge what appears to be an Albany Law School contingent sitting up in front in the audience. There is Court of Appeals Judge Victoria Graffeo; Presiding Justice of the Appellate Division, Third Department, Anthony Cardona; Appellate Division, First Department Justice Bernard Malone; and Appellate Division, Third Department Justice Anthony Carpinello. Judge and Justices, can I ask you to stand up and take a bow for our students? Thank you. And the four of them are seated next to Court of Appeals Judge Susan Read, who is an honorary Albany Law grad today.
I. STATE SUPREME COURTS IN THE FEDERAL SYSTEM
We have heard from some of the most eminent figures of the American judiciary today: Chief Judge Judith S. Kaye of New York, Chief Justice Shirley S. Abrahamson of Wisconsin, Chief Justice Christine Durham of Utah, and Chief Justice Jim Hannah of Arkansas. To be perfectly frank, let me tell you that I for one--and I am certainly not alone in this view--would much prefer that my rights and liberties were placed in their hands than in the majority of the current United States Supreme Court.
Indeed, Justices of the Supreme Court itself share that view. They believe that is actually how our federal system of government should work. Some of the Supreme Court Justices take that view because they believe that their own Court has in recent decades abdicated its ultimate responsibility of zealously safeguarding constitutional rights and liberties--i.e., that the Court has been failing to enforce rights and liberties as vigorously as it should. Consequently, in our federal system that duty must fall upon the state supreme courts. (1) It has always been there anyway as an essential role of the American judiciary as a whole, state as well as federal. But with the much less rights-protective posture of the current Supreme Court, the state supreme courts' role is especially critical.
Other Justices of the United States Supreme Court think it is entirely appropriate that the decision be left largely to the state supreme courts whether to protect the rights and liberties of their own citizens and that, if they choose to do so, they do so under their own state law. These Justices do not believe that the role of the United States Supreme Court is to be the zealous enforcer of rights and liberties. In fact, they view the Federal Constitution as a very limited, static document. They view the Bill of Rights and the Fourteenth Amendment in a minimalist, narrow fashion--as affording only the most undeniable, explicit guarantees. (2)
This characterization of these Justices--and the similar characterizations of these justices by others (3)--is not opinion. Years ago, I had the opportunity to spend some time with Chief Justice William H. Rehnquist. This was shortly following his ceremonial swearing-in at the Supreme Court as Chief Justice, which--interestingly, in the context of these remarks--happened to take place together with the swearing-in of Antonin Scalia as Associate Justice. (4) At that time, I asked the Chief Justice about several very recent cases in which the United States Supreme Court had reversed decisions of the New York Court of Appeals. The New York court--somewhat audaciously in light of the Supreme Court's increasing retrenchment on rights and liberties--had actually construed and enforced constitutional protections quite broadly. The United States Supreme Court reversed the New York decisions in each of those cases on the ground that the state high court had provided too expansive an interpretation of federal constitutional rights. (5) I said to the Chief Justice that there seem to be a growing number in our country who believe that the United States Supreme Court is no longer the moral conscience of the nation, that it is no longer being viewed as the primary guardian of our rights and liberties. …