State Constitutional Law in the Land of Steady Habits: Chief Justice Ellen A. Peters and the Connecticut Supreme Court

Article excerpt

Introduction

Over her nearly two decades on Connecticut's high court, former Chief Justice Ellen Ash Peters(1) has earned respect as a scholarly jurist(2) and an innovative administrator.(3) Citing a desire to write more opinions, resume scholarly work, and to spend more time with her family, Peters resigned as the state's Chief Justice on August 31, 1996.(4) Although Peters came to the Supreme Court with a specialty in commercial law,(5) she has played a pivotal role in "rediscovering" the protections of individual liberties found in the Connecticut Constitution.(6)

Part I of this Comment discusses the reemergence of state constitutionalism in the late twentieth century. As the tide of federal constitutional dominance recedes, state courts are left grappling with surprisingly unfamiliar territory: determining the meaning of their own constitutions. This part will explore Peters' view of state constitutional methodology, her commitment to fostering independent state courts, and her role in creating a modern framework for interpreting the Connecticut Constitution. In order to fully measure Peters' impact on the court and her colleagues, however, her role must be viewed in a larger context.

For advocates of state constitutional claims in Connecticut, the 1990s started on a somber note with the retirement of Justice Arthur H. Healey, the Connecticut Supreme Court's "undisputed champion" of expanding constitutional protections under the state charter.(7) Despite the national reemergence of state constitutionalism,(8) the Connecticut Supreme Court's slow progress prompted one commentator to declare that the "Great Awakening [was] ... looking more and more like the Big Snooze."(9) With the election of an independent governor in November 1990, however, hope sprung anew. Lowell P. Weicker, Jr., a maverick Republican and former United States Senator, formed his own party to propel himself into the Governor's Mansion.(10)

It was no small coincidence that Weicker, a staunch civil-rights advocate, chose the Charter Oak as his party's symbol.(11) By 1992, four other justices had left the high bench, giving Weicker the rare opportunity to appoint a majority of the seven member court by the mid-point of his first (and only) term of office: "I think it's an exciting opportunity for the governor to shape the highest court, to make it one of the premier Supreme Courts in the nation," gushed Weicker's chief of staff.(12)

The suspense mounted. Could this insurgence of new blood invigorate the court or would collegial forces sustain the status quo? Part II of this Comment seeks to answer that question by surveying state constitutional history in Connecticut. In particular, this survey compiles Connecticut Supreme Court cases from a recent five year period (1991-1995, inclusive) which substantively address state constitutional issues. This part categorizes each justice (and the court as a whole) as conservative or liberal, analyzes voting patterns of individual justices, and identifies correlations of voting behavior among the justices. The results show the influence of Peters' steady guidance in the development of state constitutional law in Connecticut and her reliance upon the common law tradition.

I. The Honorable Ellen A. Peters

A. Exposing the Shores of State Constitutionalism

1. Recycling the Old Federalism

Twenty years have passed since Justice William J. Brennan issued his "now famous wake-up call" for renewed state constitutionalism.(13) The protections guaranteed by state constitutions, overlooked for years by virtue of federal constitutional dominance, are gaining new attention and respect under the jurisprudence of the new federalism.(14) Justice Robert I. Berdon of the Connecticut Supreme Court has noted the catalyst for the renewed focus on state constitutions: "Given the reluctance of the present United States Supreme Court to expand upon, or even to preserve, the blueprints for liberty developed by the Warren Court, lawyers are again turning to their state constitutions as sources of individual liberties and protections. …