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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Politics comes down to divisions of power, and the question

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Speaker 1: is who decides. My guest is Judge Jeffrey Sutton. He's

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Speaker 1: the Chief Judge of the United States Court of Appeals

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Speaker 1: for the Sixth Circuit. His new book is entitled Who

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Speaker 1: Decides States As Laboratories of Constitutional Experimentation. Thanks for joining me,

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Speaker 1: Judge Sutton. This is a follow up to your first book,

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Speaker 1: So tell us why you decided to write a sequel. Yes,

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Speaker 1: the first book focused on individual rights, say, the right

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Speaker 1: to free speech, free exercise of religion, equal protection, the

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Speaker 1: things we know the most about in the federal and

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Speaker 1: state constitutions. The second book is focused on structure. And

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Speaker 1: structure to some may seem a little less interesting, um

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Speaker 1: not quite as exotic as an individual right that protects,

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Speaker 1: for example, But the more you think about it, the

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Speaker 1: more you come to appreciate that structure is far more

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Speaker 1: important when it comes to a constitution than the individual

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Speaker 1: rights protected. There A great way to illustrate that is

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Speaker 1: you can have lots of individual rights in the constitution,

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Speaker 1: as the old Soviet Union did, and not have any

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Speaker 1: place to enforce them. So structure is what separates the

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Speaker 1: different branches of government, the federal government from the state,

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Speaker 1: and ultimately it's probably the best protection of liberty there is,

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Speaker 1: or at least it's been shown to be the best

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Speaker 1: protection of liberty in American history. So the idea was

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Speaker 1: to talk about rights in this book, but also to

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Speaker 1: put them in the context of the various ways in

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Speaker 1: which our state and federal constitutions separate power and ultimately,

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Speaker 1: if all goes well, do their best to balance power.

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Speaker 1: So with so many major disputes or controversy shall issues

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Speaker 1: these days, we hear people say, well, we'll see what

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Speaker 1: the courts decide about. This has judicial power grown so

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Speaker 1: that has an outsized role in our society compared to

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Speaker 1: the other branches of government. Well, a way to think

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Speaker 1: about that is that I don't think there's been a

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Speaker 1: country in world history that has embraced judicially enforceable rights

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Speaker 1: more than we Americans have. Part of it is the

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Speaker 1: success of the courts. Take the Brown case, which is

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Speaker 1: such a singular moment in American history and in which

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Speaker 1: the court rightly gets a lot of credit for bringing

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Speaker 1: Jim Crow South to its heel. So I think one

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Speaker 1: reason we embraced judicially enforceable rights in this country, whether

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Speaker 1: at the federal or state levels, it's been successful. The

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Speaker 1: reason that perhaps put a pause button on that. It's

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Speaker 1: not so much that it's not a good idea to

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Speaker 1: identify new judicially enforceable rights, but perhaps we've fallen into

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Speaker 1: the danger of the peril of a single story where

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Speaker 1: the only source of those rights that we think about

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Speaker 1: tends to be the U. S. Constitution, and the only

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Speaker 1: protector of those rights tends to be the U. S.

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Speaker 1: Supreme Court. That seems to be perilous. You know, if

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Speaker 1: you were to look at the number of cases filed

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Speaker 1: in the court system that's you know, it's one two

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Speaker 1: hundred one are in the state courts. So most of

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Speaker 1: the places where the rule of law exists or doesn't exist,

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Speaker 1: you know, as in the state courts to start. And

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Speaker 1: the second point is to not lose sight of the

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Speaker 1: fact that we have this second set of protections. When

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Speaker 1: we think our liberty or property rights have been put

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Speaker 1: at risk. You can lose a case at the U. S.

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Speaker 1: Supreme Court under the federal Constitution and still have a

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Speaker 1: right to convince state court to rule that this state

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Speaker 1: or local law violates. An independent source of rights are

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Speaker 1: state constitutions. So part of the story is that we

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Speaker 1: do embrace judicially enforceable rights in America, There's just no

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Speaker 1: doubt about it. But another part of the story is

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Speaker 1: to remember that the U. Spreme Court is not the

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Speaker 1: only guardian of our rights. And when it comes to

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Speaker 1: every state and local law in this country, there are

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Speaker 1: two sources of protection in the court system, not just one.

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Speaker 1: So why do you think it is that we placed

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Speaker 1: such importance on what the Supreme Court rules? Well, you know,

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Speaker 1: the US Supreme Court, of course, has national authority, and

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Speaker 1: if one is fortunate enough to win there, it means

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Speaker 1: your victory applies across the country. That's especially true when

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Speaker 1: it comes to a constitutional case where you convince the

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Speaker 1: court to nationalize a position under the constitution. That means

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Speaker 1: you not only have a national victory with respect to

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Speaker 1: that right, but it means that no one is allowed

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Speaker 1: to vote on it or do anything that's different from

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Speaker 1: the Supreme Court's decision. So there are lots of incentives

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Speaker 1: to go to the federal court to seek relief, and

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Speaker 1: if one is pained relief, there are lots of incentives

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Speaker 1: to keep that victory, because it is pretty impressive to

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Speaker 1: create a rule for three million people in fifty one

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Speaker 1: jurisdictions and to prohibit democracy or other litigation from being

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Speaker 1: relevant to that particular issue. So I think that's perhaps

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Speaker 1: one feature of what's going on. And you know, as

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Speaker 1: I pointed out with the Brown case, it's a proud

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Speaker 1: moment in American history, and it's it's probably the case

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Speaker 1: most Americans know about. So when they think of constitutional rights,

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Speaker 1: it's understandable they would think of the U. S. Supreme

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Speaker 1: Court in the US Constitution. One reason I wrote these

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Speaker 1: two books is to help with this education deficit. I

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Speaker 1: think the last time we had a poll on this point,

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Speaker 1: fewer than fifty percent of Americans knew their state even

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Speaker 1: had a constitution, which to me is quite ironic, since

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Speaker 1: the federal constitutional rights that we embrace and care so

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Speaker 1: deeply about all originated in state constitutions, the early state

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Speaker 1: constitutions after seventeen seventy six, where of course, the source

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Speaker 1: code for the eventual federal Constitution in seventeen eighty nine,

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Speaker 1: and I would say for every amendment after that, you

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Speaker 1: talk about Chief Justice John Robert in his confirmation hearings,

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Speaker 1: he compared the role of a judge to an umpire

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Speaker 1: at a baseball game. And this has become famous already

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Speaker 1: because there's been so much hearkening back to it and

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Speaker 1: criticizing it as way too basic. Do you think it

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Speaker 1: would have been better not to make that comparison? Oh,

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Speaker 1: I wish I'd thought of it during my con hearing.

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Speaker 1: I thought it was brilliant, you know, confirmation hearings, as

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Speaker 1: I can attest, I was only at the Court of

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Speaker 1: Appeals level, but they're not easy, and you're trying to

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Speaker 1: explain things in a way that are understandable both to

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Speaker 1: the Senators and Americans in general, particularly when it comes

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Speaker 1: to a U. S. Supreme Court confirmation hearing. And I

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Speaker 1: thought the analogy to baseball was a good one, and

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Speaker 1: particularly as lyned that nobody goes to a baseball game

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Speaker 1: to watch the umpire, and so I think what he

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Speaker 1: was identifying with the judicial ideal, and he was trying

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Speaker 1: to present it in a way that was understandable to everybody.

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Speaker 1: So I quite liked it. I I appreciate the scholar scholarly,

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Speaker 1: I wouldn't call it critique, but scholars saying, well, is

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Speaker 1: it possible that judges have a little more discretion than umpires,

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Speaker 1: You know, maybe? So. I don't think he was disputing that.

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Speaker 1: He was just trying to make the point that our

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Speaker 1: job is not to make the rules. Our job is

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Speaker 1: to just say, whether you know, one side wins or

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Speaker 1: one side loses the thing. I think that is another way, though,

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Speaker 1: if we want to stick with analogiese. In baseball. The

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Speaker 1: thing that I think is difficult about judicial review, which

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Speaker 1: is to say, when the courts constitutionalize an area that

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Speaker 1: people care deeply about, what gets tricky is that at

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Speaker 1: that point there really aren't just two players in the game.

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Speaker 1: There really are three players in the game. So Congress

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Speaker 1: wants to do something, the President says you can't do it,

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Speaker 1: and the court has issued decisions in the area, all

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Speaker 1: three branches of government are now going to participate in

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Speaker 1: that dispute. So the same is true with any case,

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Speaker 1: any individual rights case. Once the court says the Constitution

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Speaker 1: applies to an area, they are a player in the

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Speaker 1: game and defining what that right means. And I think

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Speaker 1: that's a problem that I think is just endemic in

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Speaker 1: judicial review. And another way of putting it is we

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Speaker 1: all embrace the idea of the courts being able to

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Speaker 1: check the political branches, because separation of powers is so

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Speaker 1: central to American government from the beginning, whether it's the

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Speaker 1: state or the federal constitutions. The trick, however, over time,

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Speaker 1: is that separation of powers doesn't lead to an imbalance

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Speaker 1: of power. And the one thing that I think the

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Speaker 1: framers of the Constitution would be surprised to see is

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Speaker 1: how much authority the federal courts now have relative to

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Speaker 1: the modest role they were perceived to have at the founding.

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Speaker 1: And you know, one might be inclined to criticize federal

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Speaker 1: judges like me for that. I appreciate the point. But

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Speaker 1: another or possibility is to wonder if we, the American people,

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Speaker 1: are the ones to blame. In other words, we seem

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Speaker 1: to like it. We seem to like going to the

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Speaker 1: federal courts to figure out whether the Constitution resolves this

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Speaker 1: particular policy debate or that particular policy debate. And I

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Speaker 1: wonder if we Americans should look in the mirror and say,

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Speaker 1: is this really a sustainable system going forward that we

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Speaker 1: put life tenured federal judges, five or nine members in

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Speaker 1: the US Supreme court in charge of some of the

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Speaker 1: larger policy disputes in American government. That seems to me

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Speaker 1: an idea worth thinking about. Because the odds are high.

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Speaker 1: If we stay down this road, you know, you probably

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Speaker 1: win half the time and lose half the time. And

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Speaker 1: I guess that's good to days you win. It's a

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Speaker 1: little frustrating when you can't vote on something you care

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Speaker 1: deeply about, and I sometimes wonder if we might do

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Speaker 1: better to use our state courts a little more. The

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Speaker 1: stakes are a lot less high when you constitutionalize an

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Speaker 1: issue in Ohio, for example, as opposed to the whole country.

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Speaker 1: The other of benefit of looking to our state courts

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Speaker 1: and state constitutions is experimentation is of a virtue of

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Speaker 1: federalism that I think everybody still embraces in these polarized times.

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Speaker 1: It's hard to find things in American government we can

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Speaker 1: all agree about, but I think we still agree that

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Speaker 1: you're not sure what to do with the difficult policy problem.

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Speaker 1: It's not a bad idea to follow Justice Brandis's advice

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Speaker 1: and let the brave state try this experiment, and if

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Speaker 1: it works, let another state, and eventually maybe many states

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Speaker 1: follow it. And if it really works, if there's truly

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Speaker 1: a winning insight. Why at that point you can nationalize

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Speaker 1: the insight. The Brandise, of course, was referring to the

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Speaker 1: state legislators state legislatures as the sources of this experimentation.

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Speaker 1: In one way to summarize who decides in fifty one

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Speaker 1: perfect solutions is I'm simply suggesting that perhaps we should

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Speaker 1: use our state courts as laboratories of experimentation when it

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Speaker 1: comes to some of the more difficult constitution of debates

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Speaker 1: that the country is facing. And if you think of

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Speaker 1: the constitutional bates that seem to generate the most press

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Speaker 1: attention that most Americans know about, they're ones that are

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Speaker 1: about very generally worded guarantees, what processes do, When is

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Speaker 1: speech free? When is the search unreasonable? These are terms

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Speaker 1: that can generate disagreement, for sure, and a lot of

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Speaker 1: different perspectives, And they seem like the kind of areas

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Speaker 1: where the Brandise insight might also apply. Why not let

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Speaker 1: state courts be the experimenters in chief, the first responders

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Speaker 1: when there's a new policy problem that implicates individual liberty

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Speaker 1: or property rights or quality concerns, and let the experimentation unfold.

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Speaker 1: And sometimes that experimentation will lead to a national ruling

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Speaker 1: by the US Supreme Court, where we nationalize the constitutional right,

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Speaker 1: and other times it might turn out that this is

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Speaker 1: a big, diverse country and there might be one or

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Speaker 1: two or three reasonable ways to handle the matter, and

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Speaker 1: we could allow some variation to account for a variety

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Speaker 1: of circumstances. Why do you think it is that litigants,

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Speaker 1: when they're deciding to litigate about these rights go right

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Speaker 1: to the federal courts. Well, I think they would do

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Speaker 1: what I did when I was in litigation, which is

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Speaker 1: do what's the best by your client. And there's no

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Speaker 1: client who wouldn't prefer a national victory. So you know,

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Speaker 1: whether it's a state, whether it's an individual, whether it's

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Speaker 1: an an interest group, everyone would prefer to see the

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Speaker 1: right they care deeply about protected equally throughout the country.

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Speaker 1: I appreciate as a as a former practicing lawyer with clients,

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Speaker 1: And if the federal courts offer a way to nationalize

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Speaker 1: a victory, well I think it's quite understandable that they're

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Speaker 1: doing that. The thing I sometimes wonder is you know, here,

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Speaker 1: I am a federal judge, and I sometimes think it

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Speaker 1: might be useful for us from time to time to

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Speaker 1: listen to those state cases, maybe put a pause button

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Speaker 1: before we nationalize something. Quite often, some really terrific insights

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Speaker 1: can come from the state courts. And you know, if

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Speaker 1: if the federal courts wait a little while sometimes before

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Speaker 1: they identify these new national rights, they also lower the

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Speaker 1: stakes of their decision. Right if you know, thirty of

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Speaker 1: fifty states have already recognized a right, that means the

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Speaker 1: Supreme Court decision only affects twenty states at that point,

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Speaker 1: so that lowers the temperature of the ultimate decision. But

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Speaker 1: you know, there's another another way to think about this,

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Speaker 1: which is that sometimes the US Suprint Court puts up

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Speaker 1: a stop sign. So most recently in the rout show

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Speaker 1: fourteenth Amendment does not cover claims of extreme partisan jerrymandry.

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Speaker 1: There's a very close case. It's by four the Chief

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Speaker 1: Justice wrote, the Majority Justice Kagan wrote, powerful descent, and

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Speaker 1: it concerned a topic that I think so at one

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Speaker 1: level every American agrees is troubling that extreme partisan garmyndering

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Speaker 1: has not been good for the country. I don't think

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Speaker 1: there's a single citizen out there that thinks we need

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Speaker 1: more of it. So we all agree that it's something

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Speaker 1: that is hurting democracy, our civil discourse. Well, once the

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Speaker 1: US Spring Court puts up a stop sign in routcho

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Speaker 1: and says before too, demendment doesn't have a role to

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Speaker 1: play here. Those who have lost those cases, you know,

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Speaker 1: they have two options. Option AY embrace unhappiness, an option B.

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Speaker 1: Go to the state courts. And it turns out in

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Speaker 1: that area people have successfully gone to state court. You

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Speaker 1: have decisions by the Pennsylvania, North Carolina, and Florida court

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Speaker 1: systems that have recognized claims in that exact area under

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Speaker 1: their state constitutions. And there's also of the recourse is

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Speaker 1: going to the state legislature for a compromise and in

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Speaker 1: some cases going to amendments to state constitutions to try

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Speaker 1: to limit extreme partisan gerrymandering. So I see state constitutions

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Speaker 1: as having to roles here. One. They're very good news

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Speaker 1: for the individual that loses at the U. S. Supreme

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Speaker 1: Court when it comes to challenging the state or local law.

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Speaker 1: It gives you a second shot, a second chance at victory,

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Speaker 1: and then I see them as potentially really helpful when

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Speaker 1: it comes to the very difficult job US Supreme Court

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Speaker 1: justices have in identifying new federal constitutional rights, particularly unenumerated

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Speaker 1: rights or substance to process, where it's just not a

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Speaker 1: lot to go on in the U. S. Constitution, and

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Speaker 1: the states can be very helpful resources when it comes

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Speaker 1: there in the state constitutions, and they can be helpful

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Speaker 1: for those justices to account for shifting norms in society,

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Speaker 1: you have to look for evidence of those shifting norms

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Speaker 1: outside the judge. You have to look forward out in society,

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Speaker 1: society some objective place, and state legislatures, state courts, and

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Speaker 1: state constitutions can be really terrific evidence of shifting norms

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Speaker 1: in society. So do you think a federal judge should

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Speaker 1: should be looking more asking advice from a state supreme court? Yeah? So,

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Speaker 1: I think one of the beauties of UM paying attention

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Speaker 1: neutral principle and it helps everybody. So I tend to

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Speaker 1: lean towards the UM tax dualist original wast approached to

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Speaker 1: interpretation and the reasons state constitutions could be helpful to me.

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Speaker 1: Is there, of course the source code for the federal

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Speaker 1: guarant t because all of our original rights throughout of

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Speaker 1: state constitutions, and so a state court decision could be

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Speaker 1: really helpful to me and understanding what the federal guarantee means. Now,

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Speaker 1: some judges and justices are primate pragmatic. When they get

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Speaker 1: a close case, they want to make sure that their

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Speaker 1: interpretation um is not going to make things worse that

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Speaker 1: ideally it will make things better. Well, for the pragmatic,

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Speaker 1: pragmatic federal judge or justice, the state court decisions can

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Speaker 1: be hugely helpful because they can illustrate whether this new

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Speaker 1: interpretation help solve a problem or God forbid, made it

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Speaker 1: worse for the living constitutionalists. For those judges and justices

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Speaker 1: that in some settings will account for shifting norms in

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Speaker 1: American society, the state court decisions can be really valuable

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Speaker 1: because they can show that, indeed, a lot of Americans

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Speaker 1: now think this right or that right is quite consequential. Um.

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Speaker 1: You know, the marriage equality story illustrates this last point

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Speaker 1: in Justice Kennedy's opinion in the Burgher fell. He pointed

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Speaker 1: out that back in one or seventy two, the U. S.

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Speaker 1: Supreme Court had rejected a marriage equality claim in the

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Speaker 1: context of a Fourteenth Amendment dispute coming out of the

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Speaker 1: state of Minnesota. And he pointed out since the early seventies,

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Speaker 1: state courts had recognized a right to marriage equality under

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Speaker 1: their state constitutions, state legislatures had gotten rid of the

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Speaker 1: bands on gay marriage, and if some state constitutions have

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Speaker 1: even been amended to that effect. And he pointed out

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Speaker 1: that this dialogue informed the meaning of to process in

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Speaker 1: equal protection at the federal level. So one of the

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Speaker 1: things I really enjoy about state constitutions is they're valuable

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Speaker 1: to everybody. They're valuable to those who have lost at

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Speaker 1: the US spren Court, They're valuable to those who are

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Speaker 1: trying to win at the US Spren Court. And they're

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Speaker 1: valuable too liberals and conservatives and every method of constitutional

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Speaker 1: interpretation there's ever been. As you know, the public approval

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Speaker 1: of the Supreme Court is at its lowest in modern times.

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Speaker 1: And you talk in your book about, you know, the

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Speaker 1: confirmation of Judge Bork and and how that perhaps started

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Speaker 1: the partisanship of the selection process is there any way

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Speaker 1: at this point to take partisanship out of judicial selection. Well,

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Speaker 1: one of the chapters of Who Decides takes on the

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Speaker 1: story of judicial selection methods. And you know, when the

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Speaker 1: state and federal constitutions were being put together, no one

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Speaker 1: thought of electing judges or justices. It was always a

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Speaker 1: selection process that involved the legislative branch or the decaded branch.

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Speaker 1: And over time of the state court judges are now

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Speaker 1: elected in some way or another, whether through retention or

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Speaker 1: partisan and nonpartisan elections. So we have a world where

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Speaker 1: the state court system has seen its selection process evolved

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Speaker 1: in much more democratic ways. And you know, those elections,

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Speaker 1: even when they're nonpartisans, still involved fundraising and certainly what

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Speaker 1: looked to be political components to them. Um, you know,

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Speaker 1: I think it's a I think it's a difficult problem.

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Speaker 1: One illustration of the problem is that, you know, by

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Speaker 1: too many accounts to deny the two thousand sixteen presidential

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Speaker 1: election turned on a sufficient number of Americans choosing a

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Speaker 1: vote for isn't of the United States as a proxy

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Speaker 1: to build one seat in a nine member court. That

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Speaker 1: suggests that the American people have become very engaged and

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Speaker 1: interested in who was on the U. S. Supreme Court um,

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Speaker 1: and you know, whatever the reasons for that development, however

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Speaker 1: it is, we got to this point. I think we

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Speaker 1: can all agree that's probably not the system that the

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Speaker 1: founders designed, and we probably all can agree that's not

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Speaker 1: healthy for the federal courts. I went through the process

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Speaker 1: roughly twenty years ago and came out of it with

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Speaker 1: a vote for a lowly seat on the Court of Appeals,

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Speaker 1: and my boss, Justice Scalia, back in the mid nighties

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Speaker 1: was confirmed zo to obviously a far more important jump,

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Speaker 1: and so that does suggest things have changed. What's very

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Speaker 1: difficult about this problem is what the excess strategy is,

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Speaker 1: because you have I mean, if you think of some

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Speaker 1: of the most intense fights we have at the court,

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Speaker 1: they're actually not about new rights, they're about preserving old ones.

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Speaker 1: And that's really complicated. People get used to having a

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Speaker 1: right protected by the Court as opposed to their state

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Speaker 1: court or their state legislature or Congress, and that's a

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Speaker 1: that's a difficult problem to extract yourself from. And I

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Speaker 1: personally think we are to have an imbalance of power

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Speaker 1: situation at this point, and shrinking the footprint of the

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Speaker 1: federal courts is not something that's easy to do. When

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Speaker 1: it's very large and a lot of people care deeply

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Speaker 1: about some of the rights that are covered by that footprint,

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Speaker 1: it's very difficult to turn things around because no one

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Speaker 1: wants to give up power and the partisanship gets worse

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Speaker 1: all the time. But one way to think about it is,

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Speaker 1: I'll try this on. You do this thought experiment where

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Speaker 1: you're you get people together, and if someone is progressive,

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Speaker 1: they need to find a conservative friend. And by the way,

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Speaker 1: if they don't have one, it's the Americans could do

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Speaker 1: better on that front. And then the same for the conservative.

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Speaker 1: The conservatives should find a progressive friend. And if they

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Speaker 1: don't have one, time to get one. And the two

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Speaker 1: of them sit down and they each each get to

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Speaker 1: identify the constitutional rulings of the US Supreme Court, let's

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Speaker 1: say the last seventy years, and they each get to

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Speaker 1: pick five that they don't care for um. And so

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Speaker 1: you know what ends up happening with this thought experiment

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Speaker 1: is the progressive, Oh, a progressive might not care let's

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Speaker 1: say for Citizens United or Heller might be two examples.

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Speaker 1: And let's say the conservative might not care for, say

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Speaker 1: Casey or a criminal procedure case. But anyway, they each

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Speaker 1: get to pick five. I asked audiences this all the time,

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Speaker 1: and my law students, would you take the trade? Another way?

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Speaker 1: You have to give up five constitutional rulings that you

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Speaker 1: probably care for, but in return you get rid of

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Speaker 1: five you don't care for, and depp shot as you

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Speaker 1: take ten controversial rulings and you return them all to

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Speaker 1: democracy or state courts. So you get you know, you

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Speaker 1: get second, third, and fourth chances to win, but you've

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Speaker 1: lost your national victory at the U. S Supreme Court.

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Speaker 1: But in return for getting rid of a national defeat

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Speaker 1: or five of them. And to my surprise, most students

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Speaker 1: and most lawyers, most Americans, when I present this offer,

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Speaker 1: they won't take the trade. And I think, I think

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Speaker 1: what's going on is they, in some cases really prized

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Speaker 1: the victory, so it's very hard for them to give

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Speaker 1: up the victory. Um. There's probably a slightly amara Kin

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Speaker 1: component with this, which is, well, we're gonna win in

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Speaker 1: the end anyway, which I guess they must mean capture

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Speaker 1: control of the US Supreme Court and get keep their

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Speaker 1: five and get five more victories. Um. But they need

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Speaker 1: to remember they're going against another American, and the odds

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Speaker 1: are pretty high it's going to be going forward. They'll

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Speaker 1: win half, they'll lose half, and they won't get to

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Speaker 1: vote on any of them. You wonder if this isn't

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Speaker 1: a problem for American citizens more than is a problem

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Speaker 1: for American judges. Thanks so much for being the Bloomberg

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Speaker 1: Law Show. Judge Sutton, that's Judge Jeffrey Sutton, the Chief

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Speaker 1: Judge of the United States Court of Appeals for the

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Speaker 1: Sixth Circuit, and his new book is entitled Who Decides

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Speaker 1: States His Laboratories of Constitutional Experimentation. And that's it for

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Speaker 1: the edition of the Bloomberg Law Show. Remember you can

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Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

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Speaker 1: You can find them on Apple Podcasts, spotifying at www

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Speaker 1: dot Bloomberg dot com, slash podcast, slash Law. I'm Juan

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Speaker 1: Grosso and you're listening to Bloomberg