Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Politics comes down to divisions of power, and the question
Speaker 1: is who decides. My guest is Judge Jeffrey Sutton. He's
Speaker 1: the Chief Judge of the United States Court of Appeals
Speaker 1: for the Sixth Circuit. His new book is entitled Who
Speaker 1: Decides States As Laboratories of Constitutional Experimentation. Thanks for joining me,
Speaker 1: Judge Sutton. This is a follow up to your first book,
Speaker 1: So tell us why you decided to write a sequel. Yes,
Speaker 1: the first book focused on individual rights, say, the right
Speaker 1: to free speech, free exercise of religion, equal protection, the
Speaker 1: things we know the most about in the federal and
Speaker 1: state constitutions. The second book is focused on structure. And
Speaker 1: structure to some may seem a little less interesting, um
Speaker 1: not quite as exotic as an individual right that protects,
Speaker 1: for example, But the more you think about it, the
Speaker 1: more you come to appreciate that structure is far more
Speaker 1: important when it comes to a constitution than the individual
Speaker 1: rights protected. There A great way to illustrate that is
Speaker 1: you can have lots of individual rights in the constitution,
Speaker 1: as the old Soviet Union did, and not have any
Speaker 1: place to enforce them. So structure is what separates the
Speaker 1: different branches of government, the federal government from the state,
Speaker 1: and ultimately it's probably the best protection of liberty there is,
Speaker 1: or at least it's been shown to be the best
Speaker 1: protection of liberty in American history. So the idea was
Speaker 1: to talk about rights in this book, but also to
Speaker 1: put them in the context of the various ways in
Speaker 1: which our state and federal constitutions separate power and ultimately,
Speaker 1: if all goes well, do their best to balance power.
Speaker 1: So with so many major disputes or controversy shall issues
Speaker 1: these days, we hear people say, well, we'll see what
Speaker 1: the courts decide about. This has judicial power grown so
Speaker 1: that has an outsized role in our society compared to
Speaker 1: the other branches of government. Well, a way to think
Speaker 1: about that is that I don't think there's been a
Speaker 1: country in world history that has embraced judicially enforceable rights
Speaker 1: more than we Americans have. Part of it is the
Speaker 1: success of the courts. Take the Brown case, which is
Speaker 1: such a singular moment in American history and in which
Speaker 1: the court rightly gets a lot of credit for bringing
Speaker 1: Jim Crow South to its heel. So I think one
Speaker 1: reason we embraced judicially enforceable rights in this country, whether
Speaker 1: at the federal or state levels, it's been successful. The
Speaker 1: reason that perhaps put a pause button on that. It's
Speaker 1: not so much that it's not a good idea to
Speaker 1: identify new judicially enforceable rights, but perhaps we've fallen into
Speaker 1: the danger of the peril of a single story where
Speaker 1: the only source of those rights that we think about
Speaker 1: tends to be the U. S. Constitution, and the only
Speaker 1: protector of those rights tends to be the U. S.
Speaker 1: Supreme Court. That seems to be perilous. You know, if
Speaker 1: you were to look at the number of cases filed
Speaker 1: in the court system that's you know, it's one two
Speaker 1: hundred one are in the state courts. So most of
Speaker 1: the places where the rule of law exists or doesn't exist,
Speaker 1: you know, as in the state courts to start. And
Speaker 1: the second point is to not lose sight of the
Speaker 1: fact that we have this second set of protections. When
Speaker 1: we think our liberty or property rights have been put
Speaker 1: at risk. You can lose a case at the U. S.
Speaker 1: Supreme Court under the federal Constitution and still have a
Speaker 1: right to convince state court to rule that this state
Speaker 1: or local law violates. An independent source of rights are
Speaker 1: state constitutions. So part of the story is that we
Speaker 1: do embrace judicially enforceable rights in America, There's just no
Speaker 1: doubt about it. But another part of the story is
Speaker 1: to remember that the U. Spreme Court is not the
Speaker 1: only guardian of our rights. And when it comes to
Speaker 1: every state and local law in this country, there are
Speaker 1: two sources of protection in the court system, not just one.
Speaker 1: So why do you think it is that we placed
Speaker 1: such importance on what the Supreme Court rules? Well, you know,
Speaker 1: the US Supreme Court, of course, has national authority, and
Speaker 1: if one is fortunate enough to win there, it means
Speaker 1: your victory applies across the country. That's especially true when
Speaker 1: it comes to a constitutional case where you convince the
Speaker 1: court to nationalize a position under the constitution. That means
Speaker 1: you not only have a national victory with respect to
Speaker 1: that right, but it means that no one is allowed
Speaker 1: to vote on it or do anything that's different from
Speaker 1: the Supreme Court's decision. So there are lots of incentives
Speaker 1: to go to the federal court to seek relief, and
Speaker 1: if one is pained relief, there are lots of incentives
Speaker 1: to keep that victory, because it is pretty impressive to
Speaker 1: create a rule for three million people in fifty one
Speaker 1: jurisdictions and to prohibit democracy or other litigation from being
Speaker 1: relevant to that particular issue. So I think that's perhaps
Speaker 1: one feature of what's going on. And you know, as
Speaker 1: I pointed out with the Brown case, it's a proud
Speaker 1: moment in American history, and it's it's probably the case
Speaker 1: most Americans know about. So when they think of constitutional rights,
Speaker 1: it's understandable they would think of the U. S. Supreme
Speaker 1: Court in the US Constitution. One reason I wrote these
Speaker 1: two books is to help with this education deficit. I
Speaker 1: think the last time we had a poll on this point,
Speaker 1: fewer than fifty percent of Americans knew their state even
Speaker 1: had a constitution, which to me is quite ironic, since
Speaker 1: the federal constitutional rights that we embrace and care so
Speaker 1: deeply about all originated in state constitutions, the early state
Speaker 1: constitutions after seventeen seventy six, where of course, the source
Speaker 1: code for the eventual federal Constitution in seventeen eighty nine,
Speaker 1: and I would say for every amendment after that, you
Speaker 1: talk about Chief Justice John Robert in his confirmation hearings,
Speaker 1: he compared the role of a judge to an umpire
Speaker 1: at a baseball game. And this has become famous already
Speaker 1: because there's been so much hearkening back to it and
Speaker 1: criticizing it as way too basic. Do you think it
Speaker 1: would have been better not to make that comparison? Oh,
Speaker 1: I wish I'd thought of it during my con hearing.
Speaker 1: I thought it was brilliant, you know, confirmation hearings, as
Speaker 1: I can attest, I was only at the Court of
Speaker 1: Appeals level, but they're not easy, and you're trying to
Speaker 1: explain things in a way that are understandable both to
Speaker 1: the Senators and Americans in general, particularly when it comes
Speaker 1: to a U. S. Supreme Court confirmation hearing. And I
Speaker 1: thought the analogy to baseball was a good one, and
Speaker 1: particularly as lyned that nobody goes to a baseball game
Speaker 1: to watch the umpire, and so I think what he
Speaker 1: was identifying with the judicial ideal, and he was trying
Speaker 1: to present it in a way that was understandable to everybody.
Speaker 1: So I quite liked it. I I appreciate the scholar scholarly,
Speaker 1: I wouldn't call it critique, but scholars saying, well, is
Speaker 1: it possible that judges have a little more discretion than umpires,
Speaker 1: You know, maybe? So. I don't think he was disputing that.
Speaker 1: He was just trying to make the point that our
Speaker 1: job is not to make the rules. Our job is
Speaker 1: to just say, whether you know, one side wins or
Speaker 1: one side loses the thing. I think that is another way, though,
Speaker 1: if we want to stick with analogiese. In baseball. The
Speaker 1: thing that I think is difficult about judicial review, which
Speaker 1: is to say, when the courts constitutionalize an area that
Speaker 1: people care deeply about, what gets tricky is that at
Speaker 1: that point there really aren't just two players in the game.
Speaker 1: There really are three players in the game. So Congress
Speaker 1: wants to do something, the President says you can't do it,
Speaker 1: and the court has issued decisions in the area, all
Speaker 1: three branches of government are now going to participate in
Speaker 1: that dispute. So the same is true with any case,
Speaker 1: any individual rights case. Once the court says the Constitution
Speaker 1: applies to an area, they are a player in the
Speaker 1: game and defining what that right means. And I think
Speaker 1: that's a problem that I think is just endemic in
Speaker 1: judicial review. And another way of putting it is we
Speaker 1: all embrace the idea of the courts being able to
Speaker 1: check the political branches, because separation of powers is so
Speaker 1: central to American government from the beginning, whether it's the
Speaker 1: state or the federal constitutions. The trick, however, over time,
Speaker 1: is that separation of powers doesn't lead to an imbalance
Speaker 1: of power. And the one thing that I think the
Speaker 1: framers of the Constitution would be surprised to see is
Speaker 1: how much authority the federal courts now have relative to
Speaker 1: the modest role they were perceived to have at the founding.
Speaker 1: And you know, one might be inclined to criticize federal
Speaker 1: judges like me for that. I appreciate the point. But
Speaker 1: another or possibility is to wonder if we, the American people,
Speaker 1: are the ones to blame. In other words, we seem
Speaker 1: to like it. We seem to like going to the
Speaker 1: federal courts to figure out whether the Constitution resolves this
Speaker 1: particular policy debate or that particular policy debate. And I
Speaker 1: wonder if we Americans should look in the mirror and say,
Speaker 1: is this really a sustainable system going forward that we
Speaker 1: put life tenured federal judges, five or nine members in
Speaker 1: the US Supreme court in charge of some of the
Speaker 1: larger policy disputes in American government. That seems to me
Speaker 1: an idea worth thinking about. Because the odds are high.
Speaker 1: If we stay down this road, you know, you probably
Speaker 1: win half the time and lose half the time. And
Speaker 1: I guess that's good to days you win. It's a
Speaker 1: little frustrating when you can't vote on something you care
Speaker 1: deeply about, and I sometimes wonder if we might do
Speaker 1: better to use our state courts a little more. The
Speaker 1: stakes are a lot less high when you constitutionalize an
Speaker 1: issue in Ohio, for example, as opposed to the whole country.
Speaker 1: The other of benefit of looking to our state courts
Speaker 1: and state constitutions is experimentation is of a virtue of
Speaker 1: federalism that I think everybody still embraces in these polarized times.
Speaker 1: It's hard to find things in American government we can
Speaker 1: all agree about, but I think we still agree that
Speaker 1: you're not sure what to do with the difficult policy problem.
Speaker 1: It's not a bad idea to follow Justice Brandis's advice
Speaker 1: and let the brave state try this experiment, and if
Speaker 1: it works, let another state, and eventually maybe many states
Speaker 1: follow it. And if it really works, if there's truly
Speaker 1: a winning insight. Why at that point you can nationalize
Speaker 1: the insight. The Brandise, of course, was referring to the
Speaker 1: state legislators state legislatures as the sources of this experimentation.
Speaker 1: In one way to summarize who decides in fifty one
Speaker 1: perfect solutions is I'm simply suggesting that perhaps we should
Speaker 1: use our state courts as laboratories of experimentation when it
Speaker 1: comes to some of the more difficult constitution of debates
Speaker 1: that the country is facing. And if you think of
Speaker 1: the constitutional bates that seem to generate the most press
Speaker 1: attention that most Americans know about, they're ones that are
Speaker 1: about very generally worded guarantees, what processes do, When is
Speaker 1: speech free? When is the search unreasonable? These are terms
Speaker 1: that can generate disagreement, for sure, and a lot of
Speaker 1: different perspectives, And they seem like the kind of areas
Speaker 1: where the Brandise insight might also apply. Why not let
Speaker 1: state courts be the experimenters in chief, the first responders
Speaker 1: when there's a new policy problem that implicates individual liberty
Speaker 1: or property rights or quality concerns, and let the experimentation unfold.
Speaker 1: And sometimes that experimentation will lead to a national ruling
Speaker 1: by the US Supreme Court, where we nationalize the constitutional right,
Speaker 1: and other times it might turn out that this is
Speaker 1: a big, diverse country and there might be one or
Speaker 1: two or three reasonable ways to handle the matter, and
Speaker 1: we could allow some variation to account for a variety
Speaker 1: of circumstances. Why do you think it is that litigants,
Speaker 1: when they're deciding to litigate about these rights go right
Speaker 1: to the federal courts. Well, I think they would do
Speaker 1: what I did when I was in litigation, which is
Speaker 1: do what's the best by your client. And there's no
Speaker 1: client who wouldn't prefer a national victory. So you know,
Speaker 1: whether it's a state, whether it's an individual, whether it's
Speaker 1: an an interest group, everyone would prefer to see the
Speaker 1: right they care deeply about protected equally throughout the country.
Speaker 1: I appreciate as a as a former practicing lawyer with clients,
Speaker 1: it is the lawyer's job to really it's a fiduciary
Speaker 1: duty to do the best by your client you can.
Speaker 1: And if the federal courts offer a way to nationalize
Speaker 1: a victory, well I think it's quite understandable that they're
Speaker 1: doing that. The thing I sometimes wonder is you know, here,
Speaker 1: I am a federal judge, and I sometimes think it
Speaker 1: might be useful for us from time to time to
Speaker 1: listen to those state cases, maybe put a pause button
Speaker 1: before we nationalize something. Quite often, some really terrific insights
Speaker 1: can come from the state courts. And you know, if
Speaker 1: if the federal courts wait a little while sometimes before
Speaker 1: they identify these new national rights, they also lower the
Speaker 1: stakes of their decision. Right if you know, thirty of
Speaker 1: fifty states have already recognized a right, that means the
Speaker 1: Supreme Court decision only affects twenty states at that point,
Speaker 1: so that lowers the temperature of the ultimate decision. But
Speaker 1: you know, there's another another way to think about this,
Speaker 1: which is that sometimes the US Suprint Court puts up
Speaker 1: a stop sign. So most recently in the rout show
Speaker 1: case from a few years ago, they said that the
Speaker 1: fourteenth Amendment does not cover claims of extreme partisan jerrymandry.
Speaker 1: There's a very close case. It's by four the Chief
Speaker 1: Justice wrote, the Majority Justice Kagan wrote, powerful descent, and
Speaker 1: it concerned a topic that I think so at one
Speaker 1: level every American agrees is troubling that extreme partisan garmyndering
Speaker 1: has not been good for the country. I don't think
Speaker 1: there's a single citizen out there that thinks we need
Speaker 1: more of it. So we all agree that it's something
Speaker 1: that is hurting democracy, our civil discourse. Well, once the
Speaker 1: US Spring Court puts up a stop sign in routcho
Speaker 1: and says before too, demendment doesn't have a role to
Speaker 1: play here. Those who have lost those cases, you know,
Speaker 1: they have two options. Option AY embrace unhappiness, an option B.
Speaker 1: Go to the state courts. And it turns out in
Speaker 1: that area people have successfully gone to state court. You
Speaker 1: have decisions by the Pennsylvania, North Carolina, and Florida court
Speaker 1: systems that have recognized claims in that exact area under
Speaker 1: their state constitutions. And there's also of the recourse is
Speaker 1: going to the state legislature for a compromise and in
Speaker 1: some cases going to amendments to state constitutions to try
Speaker 1: to limit extreme partisan gerrymandering. So I see state constitutions
Speaker 1: as having to roles here. One. They're very good news
Speaker 1: for the individual that loses at the U. S. Supreme
Speaker 1: Court when it comes to challenging the state or local law.
Speaker 1: It gives you a second shot, a second chance at victory,
Speaker 1: and then I see them as potentially really helpful when
Speaker 1: it comes to the very difficult job US Supreme Court
Speaker 1: justices have in identifying new federal constitutional rights, particularly unenumerated
Speaker 1: rights or substance to process, where it's just not a
Speaker 1: lot to go on in the U. S. Constitution, and
Speaker 1: the states can be very helpful resources when it comes
Speaker 1: to the meaning of these guarantees because they all originated
Speaker 1: there in the state constitutions, and they can be helpful
Speaker 1: for those justices to account for shifting norms in society,
Speaker 1: you have to look for evidence of those shifting norms
Speaker 1: outside the judge. You have to look forward out in society,
Speaker 1: society some objective place, and state legislatures, state courts, and
Speaker 1: state constitutions can be really terrific evidence of shifting norms
Speaker 1: in society. So do you think a federal judge should
Speaker 1: should be looking more asking advice from a state supreme court? Yeah? So,
Speaker 1: I think one of the beauties of UM paying attention
Speaker 1: to state courts and state constitutions is that it's a
Speaker 1: neutral principle and it helps everybody. So I tend to
Speaker 1: lean towards the UM tax dualist original wast approached to
Speaker 1: interpretation and the reasons state constitutions could be helpful to me.
Speaker 1: Is there, of course the source code for the federal
Speaker 1: guarant t because all of our original rights throughout of
Speaker 1: state constitutions, and so a state court decision could be
Speaker 1: really helpful to me and understanding what the federal guarantee means. Now,
Speaker 1: some judges and justices are primate pragmatic. When they get
Speaker 1: a close case, they want to make sure that their
Speaker 1: interpretation um is not going to make things worse that
Speaker 1: ideally it will make things better. Well, for the pragmatic,
Speaker 1: pragmatic federal judge or justice, the state court decisions can
Speaker 1: be hugely helpful because they can illustrate whether this new
Speaker 1: interpretation help solve a problem or God forbid, made it
Speaker 1: worse for the living constitutionalists. For those judges and justices
Speaker 1: that in some settings will account for shifting norms in
Speaker 1: American society, the state court decisions can be really valuable
Speaker 1: because they can show that, indeed, a lot of Americans
Speaker 1: now think this right or that right is quite consequential. Um.
Speaker 1: You know, the marriage equality story illustrates this last point
Speaker 1: in Justice Kennedy's opinion in the Burgher fell. He pointed
Speaker 1: out that back in one or seventy two, the U. S.
Speaker 1: Supreme Court had rejected a marriage equality claim in the
Speaker 1: context of a Fourteenth Amendment dispute coming out of the
Speaker 1: state of Minnesota. And he pointed out since the early seventies,
Speaker 1: state courts had recognized a right to marriage equality under
Speaker 1: their state constitutions, state legislatures had gotten rid of the
Speaker 1: bands on gay marriage, and if some state constitutions have
Speaker 1: even been amended to that effect. And he pointed out
Speaker 1: that this dialogue informed the meaning of to process in
Speaker 1: equal protection at the federal level. So one of the
Speaker 1: things I really enjoy about state constitutions is they're valuable
Speaker 1: to everybody. They're valuable to those who have lost at
Speaker 1: the US spren Court, They're valuable to those who are
Speaker 1: trying to win at the US Spren Court. And they're
Speaker 1: valuable too liberals and conservatives and every method of constitutional
Speaker 1: interpretation there's ever been. As you know, the public approval
Speaker 1: of the Supreme Court is at its lowest in modern times.
Speaker 1: And you talk in your book about, you know, the
Speaker 1: confirmation of Judge Bork and and how that perhaps started
Speaker 1: the partisanship of the selection process is there any way
Speaker 1: at this point to take partisanship out of judicial selection. Well,
Speaker 1: one of the chapters of Who Decides takes on the
Speaker 1: story of judicial selection methods. And you know, when the
Speaker 1: state and federal constitutions were being put together, no one
Speaker 1: thought of electing judges or justices. It was always a
Speaker 1: selection process that involved the legislative branch or the decaded branch.
Speaker 1: And over time of the state court judges are now
Speaker 1: elected in some way or another, whether through retention or
Speaker 1: partisan and nonpartisan elections. So we have a world where
Speaker 1: the state court system has seen its selection process evolved
Speaker 1: in much more democratic ways. And you know, those elections,
Speaker 1: even when they're nonpartisans, still involved fundraising and certainly what
Speaker 1: looked to be political components to them. Um, you know,
Speaker 1: I think it's a I think it's a difficult problem.
Speaker 1: One illustration of the problem is that, you know, by
Speaker 1: too many accounts to deny the two thousand sixteen presidential
Speaker 1: election turned on a sufficient number of Americans choosing a
Speaker 1: vote for isn't of the United States as a proxy
Speaker 1: to build one seat in a nine member court. That
Speaker 1: suggests that the American people have become very engaged and
Speaker 1: interested in who was on the U. S. Supreme Court um,
Speaker 1: and you know, whatever the reasons for that development, however
Speaker 1: it is, we got to this point. I think we
Speaker 1: can all agree that's probably not the system that the
Speaker 1: founders designed, and we probably all can agree that's not
Speaker 1: healthy for the federal courts. I went through the process
Speaker 1: roughly twenty years ago and came out of it with
Speaker 1: a vote for a lowly seat on the Court of Appeals,
Speaker 1: and my boss, Justice Scalia, back in the mid nighties
Speaker 1: was confirmed zo to obviously a far more important jump,
Speaker 1: and so that does suggest things have changed. What's very
Speaker 1: difficult about this problem is what the excess strategy is,
Speaker 1: because you have I mean, if you think of some
Speaker 1: of the most intense fights we have at the court,
Speaker 1: they're actually not about new rights, they're about preserving old ones.
Speaker 1: And that's really complicated. People get used to having a
Speaker 1: right protected by the Court as opposed to their state
Speaker 1: court or their state legislature or Congress, and that's a
Speaker 1: that's a difficult problem to extract yourself from. And I
Speaker 1: personally think we are to have an imbalance of power
Speaker 1: situation at this point, and shrinking the footprint of the
Speaker 1: federal courts is not something that's easy to do. When
Speaker 1: it's very large and a lot of people care deeply
Speaker 1: about some of the rights that are covered by that footprint,
Speaker 1: it's very difficult to turn things around because no one
Speaker 1: wants to give up power and the partisanship gets worse
Speaker 1: all the time. But one way to think about it is,
Speaker 1: I'll try this on. You do this thought experiment where
Speaker 1: you're you get people together, and if someone is progressive,
Speaker 1: they need to find a conservative friend. And by the way,
Speaker 1: if they don't have one, it's the Americans could do
Speaker 1: better on that front. And then the same for the conservative.
Speaker 1: The conservatives should find a progressive friend. And if they
Speaker 1: don't have one, time to get one. And the two
Speaker 1: of them sit down and they each each get to
Speaker 1: identify the constitutional rulings of the US Supreme Court, let's
Speaker 1: say the last seventy years, and they each get to
Speaker 1: pick five that they don't care for um. And so
Speaker 1: you know what ends up happening with this thought experiment
Speaker 1: is the progressive, Oh, a progressive might not care let's
Speaker 1: say for Citizens United or Heller might be two examples.
Speaker 1: And let's say the conservative might not care for, say
Speaker 1: Casey or a criminal procedure case. But anyway, they each
Speaker 1: get to pick five. I asked audiences this all the time,
Speaker 1: and my law students, would you take the trade? Another way?
Speaker 1: You have to give up five constitutional rulings that you
Speaker 1: probably care for, but in return you get rid of
Speaker 1: five you don't care for, and depp shot as you
Speaker 1: take ten controversial rulings and you return them all to
Speaker 1: democracy or state courts. So you get you know, you
Speaker 1: get second, third, and fourth chances to win, but you've
Speaker 1: lost your national victory at the U. S Supreme Court.
Speaker 1: But in return for getting rid of a national defeat
Speaker 1: or five of them. And to my surprise, most students
Speaker 1: and most lawyers, most Americans, when I present this offer,
Speaker 1: they won't take the trade. And I think, I think
Speaker 1: what's going on is they, in some cases really prized
Speaker 1: the victory, so it's very hard for them to give
Speaker 1: up the victory. Um. There's probably a slightly amara Kin
Speaker 1: component with this, which is, well, we're gonna win in
Speaker 1: the end anyway, which I guess they must mean capture
Speaker 1: control of the US Supreme Court and get keep their
Speaker 1: five and get five more victories. Um. But they need
Speaker 1: to remember they're going against another American, and the odds
Speaker 1: are pretty high it's going to be going forward. They'll
Speaker 1: win half, they'll lose half, and they won't get to
Speaker 1: vote on any of them. You wonder if this isn't
Speaker 1: a problem for American citizens more than is a problem
Speaker 1: for American judges. Thanks so much for being the Bloomberg
Speaker 1: Law Show. Judge Sutton, that's Judge Jeffrey Sutton, the Chief
Speaker 1: Judge of the United States Court of Appeals for the
Speaker 1: Sixth Circuit, and his new book is entitled Who Decides
Speaker 1: States His Laboratories of Constitutional Experimentation. And that's it for
Speaker 1: the edition of the Bloomberg Law Show. Remember you can
Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.
Speaker 1: You can find them on Apple Podcasts, spotifying at www
Speaker 1: dot Bloomberg dot com, slash podcast, slash Law. I'm Juan
Speaker 1: Grosso and you're listening to Bloomberg