Opinion | The Supreme Court is Retrenching. States Don’t Have To.

Politics

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which held that there is no constitutional right to an abortion, cements that we are in an era of retrenchment for many civil rights. The Supreme Court’s rulings, based on the U.S. Constitution and the justices’ interpretation of federal law, have long been viewed as the primary bulwark for the rights that Americans enjoy.

But the federal courts are only part of the story. The United States is also governed by 50 state constitutions, each of which can potentially offer greater rights protections than the federal constitution.

For more than a century, the public, the media and even the legal world have often treated the state-level part of our justice system as an afterthought. Instead, we’ve placed our bets on federal law and the Supreme Court as the best way to achieve justice and protect our freedoms. But now, with the increasingly radicalized Supreme Court, it’s time for American society — and the U.S. legal system — to turn more attention back to state courts.

It is an underappreciated feature of our legal system that the U.S. Constitution sets only a minimum for protecting individual rights that states must meet — not a maximum. In reproductive rights, for example, high courts in 10 states including Arizona, Kansas and New Jersey have recognized independent state constitutional rights to abortion. Likewise, in many states the law goes beyond the federal constitution in protecting individual rights in areas like criminal justice, discrimination, freedom of expression and education.

To be sure, 50 state constitutions plus one federal constitution make a messy patchwork with endless complexities. And there will be many places where state judges also fail to recognize or enforce critical rights. But in many arenas, focusing on federal courts as the principal source of rights protection is no longer an option.

Fortunately, although the overall direction of the law has bent toward the federal system, we’re not starting from scratch. In recent years, some state courts have shown strong leadership in protecting freedoms and democratic values that the Supreme Court has abandoned.

Take the scourge of partisan gerrymandering. In 2019, the Supreme Court slammed its door on protecting against partisan gerrymandering, ruling in Rucho v. Common Cause that federal courts could not hear such claims. But since Rucho, state supreme courts in New York, North Carolina, Ohio and Pennsylvania have all enforced their states’ constitutional provisions to strike down gerrymandered maps.

The early history of American law is replete with examples of this kind of state leadership. As federal court of appeals Judge Jeffrey S. Sutton documented in his 2018 book, most of the constitutional rights litigation in the first 150 years of U.S. history took place in the states. In fact, the framers modeled the Bill of Rights after the protections established in several state constitutions. They assumed that states and their constitutions would be the primary site for protecting individual rights.

States, to be clear, were not enough to ensure a baseline of fundamental rights — as reflected most obviously in many states’ protection of slavery. It was after the Civil War and with the passage of new constitutional amendments and the incorporation of much of the Bill of Rights to apply to the states that the federal courts took on an expanded role. The 20th century saw a federal rights revolution, with the Supreme Court often on the vanguard, ensuring a base of rights regardless of where a person happens to live.

But state constitutions have also been sources of innovation. Before the Supreme Court ruled there was a federal right to marriage equality, for example, state courts like those in Massachusetts and Iowa ruled in favor of such rights because they were in their state constitutions.

State constitutions shouldn’t have to be a substitute, of course, for the protections of the federal constitution. And there are practical challenges to their playing this role effectively. Political pressures are often far more acute on state judges than their federal counterparts. In 38 states, supreme court justices have to stand for election, with races than can often run into millions of dollars. And many state legislatures have made a habit of targeting courts when they make unpopular decisions with everything from budget cuts to impeachment campaigns. In Iowa, a 2018 decision finding a right to abortion under the state constitution prompted the legislature to change how justices were selected, giving the governor more control over the process. Earlier this month, four new justices overruled the court’s earlier decision and upheld a 24-hour abortion waiting period. Any effort to reinvigorate state constitutions will also need to focus on supporting judicial independence from political interference.

The legal profession also needs to do more to give state constitutions their due. Litigants often fail to even raise state constitutional claims in court, meaning that judges don’t have the opportunity to develop state constitutional principles. And for their part, state judges often hew to how federal courts have addressed a legal issue. Most law schools don’t offer a single course in state constitutional law, and only a small group of scholars have made careers digging into state constitutional history or theory. That needs to change, and change fast.

A bigger role for state constitutions means that the future of constitutional law is going to look very different than it does today. State constitutions are easier to amend than the federal constitution. The composition of state supreme courts can change much more quickly than what’s typical on the federal bench. State courts are often more deeply immersed in the rough and tumble of politics. Expect dynamism and innovation, but also backlash and retrenchment.

What’s clear, however, is that in an era of federal rights reversal, state courts and state constitutions are about to be more important than ever. Embracing this new frontier is not only feasible but necessary to guarantee citizens’ rights in this new age.

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