WEBVTT - Judge Jeffrey Sutton on 'Who Decides?' 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.000 --> 0:00:12.920 Politics comes down to divisions of power, and the question 0:00:13.039 --> 0:00:17.239 is who decides. My guest is Judge Jeffrey Sutton. He's 0:00:17.280 --> 0:00:19.840 the Chief Judge of the United States Court of Appeals 0:00:19.840 --> 0:00:22.960 for the Sixth Circuit. His new book is entitled Who 0:00:23.000 --> 0:00:28.760 Decides States As Laboratories of Constitutional Experimentation. Thanks for joining me, 0:00:28.840 --> 0:00:31.960 Judge Sutton. This is a follow up to your first book, 0:00:32.560 --> 0:00:35.800 So tell us why you decided to write a sequel. Yes, 0:00:36.000 --> 0:00:39.800 the first book focused on individual rights, say, the right 0:00:39.840 --> 0:00:44.120 to free speech, free exercise of religion, equal protection, the 0:00:44.200 --> 0:00:46.519 things we know the most about in the federal and 0:00:46.560 --> 0:00:51.000 state constitutions. The second book is focused on structure. And 0:00:52.000 --> 0:00:56.480 structure to some may seem a little less interesting, um 0:00:56.520 --> 0:00:59.360 not quite as exotic as an individual right that protects, 0:01:00.240 --> 0:01:03.480 for example, But the more you think about it, the 0:01:03.480 --> 0:01:07.160 more you come to appreciate that structure is far more 0:01:07.200 --> 0:01:10.280 important when it comes to a constitution than the individual 0:01:10.400 --> 0:01:13.800 rights protected. There A great way to illustrate that is 0:01:14.120 --> 0:01:17.240 you can have lots of individual rights in the constitution, 0:01:17.480 --> 0:01:20.840 as the old Soviet Union did, and not have any 0:01:20.880 --> 0:01:25.560 place to enforce them. So structure is what separates the 0:01:25.600 --> 0:01:28.720 different branches of government, the federal government from the state, 0:01:29.240 --> 0:01:33.480 and ultimately it's probably the best protection of liberty there is, 0:01:34.080 --> 0:01:36.280 or at least it's been shown to be the best 0:01:36.280 --> 0:01:40.120 protection of liberty in American history. So the idea was 0:01:40.160 --> 0:01:43.080 to talk about rights in this book, but also to 0:01:43.120 --> 0:01:46.240 put them in the context of the various ways in 0:01:46.280 --> 0:01:51.600 which our state and federal constitutions separate power and ultimately, 0:01:51.680 --> 0:01:54.800 if all goes well, do their best to balance power. 0:01:56.040 --> 0:02:00.760 So with so many major disputes or controversy shall issues 0:02:00.920 --> 0:02:03.640 these days, we hear people say, well, we'll see what 0:02:03.720 --> 0:02:08.600 the courts decide about. This has judicial power grown so 0:02:08.639 --> 0:02:12.760 that has an outsized role in our society compared to 0:02:12.800 --> 0:02:16.440 the other branches of government. Well, a way to think 0:02:16.440 --> 0:02:19.400 about that is that I don't think there's been a 0:02:19.440 --> 0:02:24.560 country in world history that has embraced judicially enforceable rights 0:02:24.639 --> 0:02:28.280 more than we Americans have. Part of it is the 0:02:28.360 --> 0:02:31.760 success of the courts. Take the Brown case, which is 0:02:31.840 --> 0:02:35.720 such a singular moment in American history and in which 0:02:35.720 --> 0:02:38.600 the court rightly gets a lot of credit for bringing 0:02:38.840 --> 0:02:41.880 Jim Crow South to its heel. So I think one 0:02:41.960 --> 0:02:45.280 reason we embraced judicially enforceable rights in this country, whether 0:02:45.320 --> 0:02:48.160 at the federal or state levels, it's been successful. The 0:02:48.200 --> 0:02:51.560 reason that perhaps put a pause button on that. It's 0:02:51.600 --> 0:02:54.400 not so much that it's not a good idea to 0:02:55.160 --> 0:02:59.240 identify new judicially enforceable rights, but perhaps we've fallen into 0:02:59.240 --> 0:03:02.400 the danger of the peril of a single story where 0:03:02.440 --> 0:03:05.120 the only source of those rights that we think about 0:03:05.360 --> 0:03:07.399 tends to be the U. S. Constitution, and the only 0:03:07.440 --> 0:03:10.720 protector of those rights tends to be the U. S. 0:03:10.720 --> 0:03:13.760 Supreme Court. That seems to be perilous. You know, if 0:03:13.760 --> 0:03:16.480 you were to look at the number of cases filed 0:03:16.480 --> 0:03:19.040 in the court system that's you know, it's one two 0:03:19.080 --> 0:03:22.240 hundred one are in the state courts. So most of 0:03:22.280 --> 0:03:25.080 the places where the rule of law exists or doesn't exist, 0:03:25.360 --> 0:03:27.320 you know, as in the state courts to start. And 0:03:27.360 --> 0:03:30.480 the second point is to not lose sight of the 0:03:30.520 --> 0:03:34.679 fact that we have this second set of protections. When 0:03:34.720 --> 0:03:37.960 we think our liberty or property rights have been put 0:03:38.000 --> 0:03:40.600 at risk. You can lose a case at the U. S. 0:03:40.600 --> 0:03:42.880 Supreme Court under the federal Constitution and still have a 0:03:43.000 --> 0:03:46.840 right to convince state court to rule that this state 0:03:46.960 --> 0:03:50.440 or local law violates. An independent source of rights are 0:03:50.480 --> 0:03:53.960 state constitutions. So part of the story is that we 0:03:54.160 --> 0:03:57.240 do embrace judicially enforceable rights in America, There's just no 0:03:57.320 --> 0:03:59.720 doubt about it. But another part of the story is 0:04:00.000 --> 0:04:02.040 to remember that the U. Spreme Court is not the 0:04:02.040 --> 0:04:04.320 only guardian of our rights. And when it comes to 0:04:04.640 --> 0:04:07.360 every state and local law in this country, there are 0:04:07.360 --> 0:04:11.400 two sources of protection in the court system, not just one. 0:04:11.960 --> 0:04:14.520 So why do you think it is that we placed 0:04:14.880 --> 0:04:19.440 such importance on what the Supreme Court rules? Well, you know, 0:04:19.480 --> 0:04:22.960 the US Supreme Court, of course, has national authority, and 0:04:23.440 --> 0:04:26.360 if one is fortunate enough to win there, it means 0:04:26.400 --> 0:04:30.120 your victory applies across the country. That's especially true when 0:04:30.160 --> 0:04:33.400 it comes to a constitutional case where you convince the 0:04:33.440 --> 0:04:37.359 court to nationalize a position under the constitution. That means 0:04:38.320 --> 0:04:40.680 you not only have a national victory with respect to 0:04:40.720 --> 0:04:42.880 that right, but it means that no one is allowed 0:04:42.920 --> 0:04:45.760 to vote on it or do anything that's different from 0:04:45.800 --> 0:04:48.720 the Supreme Court's decision. So there are lots of incentives 0:04:48.880 --> 0:04:51.760 to go to the federal court to seek relief, and 0:04:52.040 --> 0:04:54.280 if one is pained relief, there are lots of incentives 0:04:54.320 --> 0:04:57.599 to keep that victory, because it is pretty impressive to 0:04:57.640 --> 0:05:00.800 create a rule for three million people in fifty one 0:05:00.920 --> 0:05:05.560 jurisdictions and to prohibit democracy or other litigation from being 0:05:05.600 --> 0:05:09.560 relevant to that particular issue. So I think that's perhaps 0:05:09.600 --> 0:05:12.360 one feature of what's going on. And you know, as 0:05:12.360 --> 0:05:14.760 I pointed out with the Brown case, it's a proud 0:05:14.839 --> 0:05:17.479 moment in American history, and it's it's probably the case 0:05:17.839 --> 0:05:21.120 most Americans know about. So when they think of constitutional rights, 0:05:21.160 --> 0:05:23.599 it's understandable they would think of the U. S. Supreme 0:05:23.600 --> 0:05:27.000 Court in the US Constitution. One reason I wrote these 0:05:27.000 --> 0:05:30.479 two books is to help with this education deficit. I 0:05:30.520 --> 0:05:32.839 think the last time we had a poll on this point, 0:05:33.000 --> 0:05:35.800 fewer than fifty percent of Americans knew their state even 0:05:35.800 --> 0:05:39.080 had a constitution, which to me is quite ironic, since 0:05:39.279 --> 0:05:42.800 the federal constitutional rights that we embrace and care so 0:05:42.880 --> 0:05:47.000 deeply about all originated in state constitutions, the early state 0:05:47.000 --> 0:05:50.480 constitutions after seventeen seventy six, where of course, the source 0:05:50.560 --> 0:05:54.799 code for the eventual federal Constitution in seventeen eighty nine, 0:05:54.839 --> 0:05:57.760 and I would say for every amendment after that, you 0:05:57.839 --> 0:06:02.040 talk about Chief Justice John Robert in his confirmation hearings, 0:06:02.080 --> 0:06:04.760 he compared the role of a judge to an umpire 0:06:04.760 --> 0:06:07.839 at a baseball game. And this has become famous already 0:06:07.880 --> 0:06:11.040 because there's been so much hearkening back to it and 0:06:11.240 --> 0:06:15.640 criticizing it as way too basic. Do you think it 0:06:15.680 --> 0:06:18.840 would have been better not to make that comparison? Oh, 0:06:18.920 --> 0:06:21.760 I wish I'd thought of it during my con hearing. 0:06:22.040 --> 0:06:26.360 I thought it was brilliant, you know, confirmation hearings, as 0:06:26.440 --> 0:06:28.120 I can attest, I was only at the Court of 0:06:28.120 --> 0:06:32.159 Appeals level, but they're not easy, and you're trying to 0:06:32.240 --> 0:06:35.280 explain things in a way that are understandable both to 0:06:35.400 --> 0:06:39.279 the Senators and Americans in general, particularly when it comes 0:06:39.279 --> 0:06:41.840 to a U. S. Supreme Court confirmation hearing. And I 0:06:41.880 --> 0:06:44.880 thought the analogy to baseball was a good one, and 0:06:45.080 --> 0:06:48.760 particularly as lyned that nobody goes to a baseball game 0:06:48.839 --> 0:06:51.760 to watch the umpire, and so I think what he 0:06:51.880 --> 0:06:55.760 was identifying with the judicial ideal, and he was trying 0:06:55.800 --> 0:06:59.159 to present it in a way that was understandable to everybody. 0:06:59.400 --> 0:07:03.799 So I quite liked it. I I appreciate the scholar scholarly, 0:07:04.960 --> 0:07:08.400 I wouldn't call it critique, but scholars saying, well, is 0:07:08.400 --> 0:07:13.080 it possible that judges have a little more discretion than umpires, 0:07:13.120 --> 0:07:15.920 You know, maybe? So. I don't think he was disputing that. 0:07:16.120 --> 0:07:18.440 He was just trying to make the point that our 0:07:18.560 --> 0:07:20.400 job is not to make the rules. Our job is 0:07:20.400 --> 0:07:23.440 to just say, whether you know, one side wins or 0:07:23.440 --> 0:07:26.920 one side loses the thing. I think that is another way, though, 0:07:26.960 --> 0:07:29.920 if we want to stick with analogiese. In baseball. The 0:07:29.920 --> 0:07:32.800 thing that I think is difficult about judicial review, which 0:07:32.840 --> 0:07:36.960 is to say, when the courts constitutionalize an area that 0:07:37.080 --> 0:07:40.680 people care deeply about, what gets tricky is that at 0:07:40.680 --> 0:07:44.080 that point there really aren't just two players in the game. 0:07:44.120 --> 0:07:47.640 There really are three players in the game. So Congress 0:07:47.680 --> 0:07:50.320 wants to do something, the President says you can't do it, 0:07:50.600 --> 0:07:53.640 and the court has issued decisions in the area, all 0:07:53.680 --> 0:07:56.440 three branches of government are now going to participate in 0:07:56.520 --> 0:07:59.120 that dispute. So the same is true with any case, 0:07:59.200 --> 0:08:02.280 any individual rights case. Once the court says the Constitution 0:08:02.320 --> 0:08:04.960 applies to an area, they are a player in the 0:08:05.040 --> 0:08:09.680 game and defining what that right means. And I think 0:08:10.160 --> 0:08:12.680 that's a problem that I think is just endemic in 0:08:12.760 --> 0:08:16.720 judicial review. And another way of putting it is we 0:08:16.800 --> 0:08:20.480 all embrace the idea of the courts being able to 0:08:20.560 --> 0:08:24.560 check the political branches, because separation of powers is so 0:08:24.680 --> 0:08:28.040 central to American government from the beginning, whether it's the 0:08:28.080 --> 0:08:32.240 state or the federal constitutions. The trick, however, over time, 0:08:32.920 --> 0:08:35.839 is that separation of powers doesn't lead to an imbalance 0:08:35.920 --> 0:08:39.319 of power. And the one thing that I think the 0:08:39.360 --> 0:08:43.240 framers of the Constitution would be surprised to see is 0:08:43.280 --> 0:08:46.560 how much authority the federal courts now have relative to 0:08:46.679 --> 0:08:51.080 the modest role they were perceived to have at the founding. 0:08:51.440 --> 0:08:55.800 And you know, one might be inclined to criticize federal 0:08:55.880 --> 0:08:59.600 judges like me for that. I appreciate the point. But 0:08:59.679 --> 0:09:04.480 another or possibility is to wonder if we, the American people, 0:09:04.720 --> 0:09:06.560 are the ones to blame. In other words, we seem 0:09:06.640 --> 0:09:08.880 to like it. We seem to like going to the 0:09:08.920 --> 0:09:13.320 federal courts to figure out whether the Constitution resolves this 0:09:13.440 --> 0:09:17.520 particular policy debate or that particular policy debate. And I 0:09:17.559 --> 0:09:20.679 wonder if we Americans should look in the mirror and say, 0:09:21.040 --> 0:09:24.200 is this really a sustainable system going forward that we 0:09:24.360 --> 0:09:28.120 put life tenured federal judges, five or nine members in 0:09:28.160 --> 0:09:30.400 the US Supreme court in charge of some of the 0:09:30.600 --> 0:09:33.840 larger policy disputes in American government. That seems to me 0:09:33.920 --> 0:09:37.000 an idea worth thinking about. Because the odds are high. 0:09:37.280 --> 0:09:39.839 If we stay down this road, you know, you probably 0:09:39.880 --> 0:09:41.880 win half the time and lose half the time. And 0:09:42.120 --> 0:09:44.320 I guess that's good to days you win. It's a 0:09:44.320 --> 0:09:46.680 little frustrating when you can't vote on something you care 0:09:46.720 --> 0:09:49.520 deeply about, and I sometimes wonder if we might do 0:09:49.600 --> 0:09:52.920 better to use our state courts a little more. The 0:09:52.960 --> 0:09:56.200 stakes are a lot less high when you constitutionalize an 0:09:56.200 --> 0:09:59.439 issue in Ohio, for example, as opposed to the whole country. 0:09:59.679 --> 0:10:02.120 The other of benefit of looking to our state courts 0:10:02.160 --> 0:10:05.760 and state constitutions is experimentation is of a virtue of 0:10:05.800 --> 0:10:09.839 federalism that I think everybody still embraces in these polarized times. 0:10:09.840 --> 0:10:11.840 It's hard to find things in American government we can 0:10:11.840 --> 0:10:14.200 all agree about, but I think we still agree that 0:10:14.559 --> 0:10:17.520 you're not sure what to do with the difficult policy problem. 0:10:17.559 --> 0:10:21.040 It's not a bad idea to follow Justice Brandis's advice 0:10:21.120 --> 0:10:24.280 and let the brave state try this experiment, and if 0:10:24.320 --> 0:10:27.920 it works, let another state, and eventually maybe many states 0:10:27.920 --> 0:10:30.280 follow it. And if it really works, if there's truly 0:10:30.320 --> 0:10:34.040 a winning insight. Why at that point you can nationalize 0:10:34.320 --> 0:10:37.120 the insight. The Brandise, of course, was referring to the 0:10:37.160 --> 0:10:43.839 state legislators state legislatures as the sources of this experimentation. 0:10:44.080 --> 0:10:48.040 In one way to summarize who decides in fifty one 0:10:48.120 --> 0:10:53.240 perfect solutions is I'm simply suggesting that perhaps we should 0:10:53.280 --> 0:10:57.040 use our state courts as laboratories of experimentation when it 0:10:57.080 --> 0:11:00.600 comes to some of the more difficult constitution of debates 0:11:00.720 --> 0:11:03.560 that the country is facing. And if you think of 0:11:03.679 --> 0:11:06.640 the constitutional bates that seem to generate the most press 0:11:06.640 --> 0:11:10.040 attention that most Americans know about, they're ones that are 0:11:10.040 --> 0:11:15.880 about very generally worded guarantees, what processes do, When is 0:11:15.960 --> 0:11:21.720 speech free? When is the search unreasonable? These are terms 0:11:21.760 --> 0:11:25.080 that can generate disagreement, for sure, and a lot of 0:11:25.080 --> 0:11:28.560 different perspectives, And they seem like the kind of areas 0:11:28.679 --> 0:11:33.120 where the Brandise insight might also apply. Why not let 0:11:33.360 --> 0:11:37.199 state courts be the experimenters in chief, the first responders 0:11:37.200 --> 0:11:41.319 when there's a new policy problem that implicates individual liberty 0:11:41.480 --> 0:11:46.360 or property rights or quality concerns, and let the experimentation unfold. 0:11:46.480 --> 0:11:50.920 And sometimes that experimentation will lead to a national ruling 0:11:50.960 --> 0:11:53.839 by the US Supreme Court, where we nationalize the constitutional right, 0:11:53.920 --> 0:11:57.040 and other times it might turn out that this is 0:11:57.080 --> 0:11:59.600 a big, diverse country and there might be one or 0:11:59.600 --> 0:12:02.360 two or three reasonable ways to handle the matter, and 0:12:03.120 --> 0:12:06.080 we could allow some variation to account for a variety 0:12:06.080 --> 0:12:10.480 of circumstances. Why do you think it is that litigants, 0:12:11.080 --> 0:12:14.959 when they're deciding to litigate about these rights go right 0:12:15.000 --> 0:12:18.600 to the federal courts. Well, I think they would do 0:12:18.640 --> 0:12:20.720 what I did when I was in litigation, which is 0:12:21.440 --> 0:12:24.920 do what's the best by your client. And there's no 0:12:25.040 --> 0:12:30.000 client who wouldn't prefer a national victory. So you know, 0:12:30.280 --> 0:12:32.600 whether it's a state, whether it's an individual, whether it's 0:12:32.600 --> 0:12:36.080 an an interest group, everyone would prefer to see the 0:12:36.240 --> 0:12:40.400 right they care deeply about protected equally throughout the country. 0:12:40.800 --> 0:12:44.760 I appreciate as a as a former practicing lawyer with clients, 0:12:45.360 --> 0:12:48.240 it is the lawyer's job to really it's a fiduciary 0:12:48.320 --> 0:12:50.520 duty to do the best by your client you can. 0:12:50.600 --> 0:12:55.000 And if the federal courts offer a way to nationalize 0:12:55.559 --> 0:12:59.120 a victory, well I think it's quite understandable that they're 0:12:59.160 --> 0:13:04.400 doing that. The thing I sometimes wonder is you know, here, 0:13:04.400 --> 0:13:08.320 I am a federal judge, and I sometimes think it 0:13:08.400 --> 0:13:10.719 might be useful for us from time to time to 0:13:11.480 --> 0:13:15.240 listen to those state cases, maybe put a pause button 0:13:15.320 --> 0:13:19.960 before we nationalize something. Quite often, some really terrific insights 0:13:20.000 --> 0:13:22.720 can come from the state courts. And you know, if 0:13:22.880 --> 0:13:25.480 if the federal courts wait a little while sometimes before 0:13:25.520 --> 0:13:28.320 they identify these new national rights, they also lower the 0:13:28.320 --> 0:13:31.400 stakes of their decision. Right if you know, thirty of 0:13:31.559 --> 0:13:35.960 fifty states have already recognized a right, that means the 0:13:36.000 --> 0:13:39.160 Supreme Court decision only affects twenty states at that point, 0:13:39.200 --> 0:13:43.200 so that lowers the temperature of the ultimate decision. But 0:13:43.280 --> 0:13:45.480 you know, there's another another way to think about this, 0:13:46.080 --> 0:13:48.360 which is that sometimes the US Suprint Court puts up 0:13:48.400 --> 0:13:51.440 a stop sign. So most recently in the rout show 0:13:51.480 --> 0:13:53.920 case from a few years ago, they said that the 0:13:54.000 --> 0:13:59.280 fourteenth Amendment does not cover claims of extreme partisan jerrymandry. 0:14:00.000 --> 0:14:03.120 There's a very close case. It's by four the Chief 0:14:03.200 --> 0:14:07.480 Justice wrote, the Majority Justice Kagan wrote, powerful descent, and 0:14:07.600 --> 0:14:10.880 it concerned a topic that I think so at one 0:14:11.000 --> 0:14:16.360 level every American agrees is troubling that extreme partisan garmyndering 0:14:16.400 --> 0:14:19.320 has not been good for the country. I don't think 0:14:19.360 --> 0:14:21.880 there's a single citizen out there that thinks we need 0:14:21.960 --> 0:14:24.440 more of it. So we all agree that it's something 0:14:24.520 --> 0:14:28.800 that is hurting democracy, our civil discourse. Well, once the 0:14:28.920 --> 0:14:31.160 US Spring Court puts up a stop sign in routcho 0:14:31.240 --> 0:14:33.800 and says before too, demendment doesn't have a role to 0:14:33.880 --> 0:14:36.920 play here. Those who have lost those cases, you know, 0:14:37.000 --> 0:14:41.560 they have two options. Option AY embrace unhappiness, an option B. 0:14:41.880 --> 0:14:44.440 Go to the state courts. And it turns out in 0:14:44.520 --> 0:14:47.800 that area people have successfully gone to state court. You 0:14:47.920 --> 0:14:52.560 have decisions by the Pennsylvania, North Carolina, and Florida court 0:14:52.640 --> 0:14:57.440 systems that have recognized claims in that exact area under 0:14:57.480 --> 0:15:00.800 their state constitutions. And there's also of the recourse is 0:15:00.840 --> 0:15:04.960 going to the state legislature for a compromise and in 0:15:05.120 --> 0:15:09.520 some cases going to amendments to state constitutions to try 0:15:09.560 --> 0:15:14.000 to limit extreme partisan gerrymandering. So I see state constitutions 0:15:14.000 --> 0:15:18.120 as having to roles here. One. They're very good news 0:15:18.240 --> 0:15:21.040 for the individual that loses at the U. S. Supreme 0:15:21.080 --> 0:15:23.600 Court when it comes to challenging the state or local law. 0:15:23.640 --> 0:15:27.000 It gives you a second shot, a second chance at victory, 0:15:27.720 --> 0:15:30.920 and then I see them as potentially really helpful when 0:15:30.960 --> 0:15:34.480 it comes to the very difficult job US Supreme Court 0:15:34.560 --> 0:15:42.359 justices have in identifying new federal constitutional rights, particularly unenumerated 0:15:42.440 --> 0:15:45.360 rights or substance to process, where it's just not a 0:15:45.440 --> 0:15:48.440 lot to go on in the U. S. Constitution, and 0:15:49.680 --> 0:15:53.480 the states can be very helpful resources when it comes 0:15:53.520 --> 0:15:57.520 to the meaning of these guarantees because they all originated 0:15:57.600 --> 0:16:01.720 there in the state constitutions, and they can be helpful 0:16:02.400 --> 0:16:07.240 for those justices to account for shifting norms in society, 0:16:08.000 --> 0:16:10.240 you have to look for evidence of those shifting norms 0:16:10.280 --> 0:16:13.400 outside the judge. You have to look forward out in society, 0:16:13.920 --> 0:16:18.040 society some objective place, and state legislatures, state courts, and 0:16:18.080 --> 0:16:22.560 state constitutions can be really terrific evidence of shifting norms 0:16:22.600 --> 0:16:26.400 in society. So do you think a federal judge should 0:16:27.240 --> 0:16:35.000 should be looking more asking advice from a state supreme court? Yeah? So, 0:16:35.160 --> 0:16:39.120 I think one of the beauties of UM paying attention 0:16:39.160 --> 0:16:42.320 to state courts and state constitutions is that it's a 0:16:42.400 --> 0:16:46.400 neutral principle and it helps everybody. So I tend to 0:16:46.520 --> 0:16:50.760 lean towards the UM tax dualist original wast approached to 0:16:50.880 --> 0:16:55.040 interpretation and the reasons state constitutions could be helpful to me. 0:16:55.400 --> 0:16:59.640 Is there, of course the source code for the federal 0:16:59.720 --> 0:17:03.640 guarant t because all of our original rights throughout of 0:17:03.760 --> 0:17:07.960 state constitutions, and so a state court decision could be 0:17:08.040 --> 0:17:12.119 really helpful to me and understanding what the federal guarantee means. Now, 0:17:12.280 --> 0:17:17.159 some judges and justices are primate pragmatic. When they get 0:17:17.200 --> 0:17:20.560 a close case, they want to make sure that their 0:17:20.640 --> 0:17:23.920 interpretation um is not going to make things worse that 0:17:24.280 --> 0:17:27.680 ideally it will make things better. Well, for the pragmatic, 0:17:27.760 --> 0:17:31.959 pragmatic federal judge or justice, the state court decisions can 0:17:32.040 --> 0:17:37.919 be hugely helpful because they can illustrate whether this new 0:17:38.000 --> 0:17:42.639 interpretation help solve a problem or God forbid, made it 0:17:42.760 --> 0:17:49.840 worse for the living constitutionalists. For those judges and justices 0:17:50.000 --> 0:17:53.920 that in some settings will account for shifting norms in 0:17:53.960 --> 0:17:58.600 American society, the state court decisions can be really valuable 0:17:58.760 --> 0:18:03.959 because they can show that, indeed, a lot of Americans 0:18:04.080 --> 0:18:09.239 now think this right or that right is quite consequential. Um. 0:18:09.600 --> 0:18:13.560 You know, the marriage equality story illustrates this last point 0:18:14.040 --> 0:18:16.879 in Justice Kennedy's opinion in the Burgher fell. He pointed 0:18:16.920 --> 0:18:22.000 out that back in one or seventy two, the U. S. 0:18:22.040 --> 0:18:25.639 Supreme Court had rejected a marriage equality claim in the 0:18:25.720 --> 0:18:29.080 context of a Fourteenth Amendment dispute coming out of the 0:18:29.119 --> 0:18:32.520 state of Minnesota. And he pointed out since the early seventies, 0:18:34.200 --> 0:18:39.720 state courts had recognized a right to marriage equality under 0:18:39.760 --> 0:18:43.399 their state constitutions, state legislatures had gotten rid of the 0:18:43.520 --> 0:18:48.879 bands on gay marriage, and if some state constitutions have 0:18:48.960 --> 0:18:51.880 even been amended to that effect. And he pointed out 0:18:51.960 --> 0:18:57.600 that this dialogue informed the meaning of to process in 0:18:57.680 --> 0:19:01.080 equal protection at the federal level. So one of the 0:19:01.160 --> 0:19:05.879 things I really enjoy about state constitutions is they're valuable 0:19:05.920 --> 0:19:09.080 to everybody. They're valuable to those who have lost at 0:19:09.080 --> 0:19:11.359 the US spren Court, They're valuable to those who are 0:19:11.400 --> 0:19:13.200 trying to win at the US Spren Court. And they're 0:19:13.280 --> 0:19:19.440 valuable too liberals and conservatives and every method of constitutional 0:19:19.480 --> 0:19:25.040 interpretation there's ever been. As you know, the public approval 0:19:25.119 --> 0:19:27.959 of the Supreme Court is at its lowest in modern times. 0:19:28.760 --> 0:19:31.080 And you talk in your book about, you know, the 0:19:31.160 --> 0:19:35.760 confirmation of Judge Bork and and how that perhaps started 0:19:36.840 --> 0:19:41.480 the partisanship of the selection process is there any way 0:19:41.520 --> 0:19:47.880 at this point to take partisanship out of judicial selection. Well, 0:19:48.160 --> 0:19:50.720 one of the chapters of Who Decides takes on the 0:19:51.160 --> 0:19:55.720 story of judicial selection methods. And you know, when the 0:19:55.800 --> 0:19:59.639 state and federal constitutions were being put together, no one 0:19:59.680 --> 0:20:02.560 thought of electing judges or justices. It was always a 0:20:03.480 --> 0:20:08.600 selection process that involved the legislative branch or the decaded branch. 0:20:08.840 --> 0:20:14.240 And over time of the state court judges are now 0:20:14.400 --> 0:20:17.119 elected in some way or another, whether through retention or 0:20:17.200 --> 0:20:21.000 partisan and nonpartisan elections. So we have a world where 0:20:21.080 --> 0:20:26.440 the state court system has seen its selection process evolved 0:20:27.680 --> 0:20:31.920 in much more democratic ways. And you know, those elections, 0:20:32.000 --> 0:20:36.800 even when they're nonpartisans, still involved fundraising and certainly what 0:20:37.000 --> 0:20:41.040 looked to be political components to them. Um, you know, 0:20:41.160 --> 0:20:43.840 I think it's a I think it's a difficult problem. 0:20:45.200 --> 0:20:49.840 One illustration of the problem is that, you know, by 0:20:50.280 --> 0:20:54.359 too many accounts to deny the two thousand sixteen presidential 0:20:54.400 --> 0:20:59.280 election turned on a sufficient number of Americans choosing a 0:20:59.359 --> 0:21:01.840 vote for isn't of the United States as a proxy 0:21:02.800 --> 0:21:05.920 to build one seat in a nine member court. That 0:21:06.080 --> 0:21:11.080 suggests that the American people have become very engaged and 0:21:11.880 --> 0:21:15.840 interested in who was on the U. S. Supreme Court um, 0:21:16.000 --> 0:21:21.879 and you know, whatever the reasons for that development, however 0:21:22.000 --> 0:21:24.560 it is, we got to this point. I think we 0:21:24.640 --> 0:21:27.240 can all agree that's probably not the system that the 0:21:27.320 --> 0:21:30.480 founders designed, and we probably all can agree that's not 0:21:30.600 --> 0:21:34.040 healthy for the federal courts. I went through the process 0:21:34.640 --> 0:21:37.639 roughly twenty years ago and came out of it with 0:21:37.720 --> 0:21:42.640 a vote for a lowly seat on the Court of Appeals, 0:21:42.680 --> 0:21:48.360 and my boss, Justice Scalia, back in the mid nighties 0:21:48.440 --> 0:21:52.320 was confirmed zo to obviously a far more important jump, 0:21:53.480 --> 0:21:58.280 and so that does suggest things have changed. What's very 0:21:58.359 --> 0:22:04.680 difficult about this problem is what the excess strategy is, 0:22:05.359 --> 0:22:08.200 because you have I mean, if you think of some 0:22:08.400 --> 0:22:11.560 of the most intense fights we have at the court, 0:22:12.119 --> 0:22:14.960 they're actually not about new rights, they're about preserving old ones. 0:22:15.440 --> 0:22:19.399 And that's really complicated. People get used to having a 0:22:19.520 --> 0:22:22.480 right protected by the Court as opposed to their state 0:22:22.560 --> 0:22:28.840 court or their state legislature or Congress, and that's a 0:22:29.359 --> 0:22:34.720 that's a difficult problem to extract yourself from. And I 0:22:34.840 --> 0:22:37.760 personally think we are to have an imbalance of power 0:22:37.920 --> 0:22:42.200 situation at this point, and shrinking the footprint of the 0:22:42.240 --> 0:22:45.360 federal courts is not something that's easy to do. When 0:22:45.440 --> 0:22:48.480 it's very large and a lot of people care deeply 0:22:48.560 --> 0:22:51.760 about some of the rights that are covered by that footprint, 0:22:52.000 --> 0:22:55.679 it's very difficult to turn things around because no one 0:22:55.760 --> 0:22:59.040 wants to give up power and the partisanship gets worse 0:22:59.200 --> 0:23:01.800 all the time. But one way to think about it is, 0:23:02.200 --> 0:23:05.520 I'll try this on. You do this thought experiment where 0:23:05.640 --> 0:23:09.320 you're you get people together, and if someone is progressive, 0:23:10.280 --> 0:23:12.840 they need to find a conservative friend. And by the way, 0:23:12.880 --> 0:23:16.200 if they don't have one, it's the Americans could do 0:23:16.280 --> 0:23:19.120 better on that front. And then the same for the conservative. 0:23:19.119 --> 0:23:21.600 The conservatives should find a progressive friend. And if they 0:23:21.600 --> 0:23:24.400 don't have one, time to get one. And the two 0:23:24.440 --> 0:23:27.320 of them sit down and they each each get to 0:23:27.440 --> 0:23:31.800 identify the constitutional rulings of the US Supreme Court, let's 0:23:31.800 --> 0:23:34.840 say the last seventy years, and they each get to 0:23:34.920 --> 0:23:39.320 pick five that they don't care for um. And so 0:23:39.800 --> 0:23:42.520 you know what ends up happening with this thought experiment 0:23:42.880 --> 0:23:47.120 is the progressive, Oh, a progressive might not care let's 0:23:47.119 --> 0:23:50.480 say for Citizens United or Heller might be two examples. 0:23:50.800 --> 0:23:54.600 And let's say the conservative might not care for, say 0:23:54.760 --> 0:23:58.120 Casey or a criminal procedure case. But anyway, they each 0:23:58.160 --> 0:24:01.800 get to pick five. I asked audiences this all the time, 0:24:01.880 --> 0:24:05.880 and my law students, would you take the trade? Another way? 0:24:05.920 --> 0:24:10.359 You have to give up five constitutional rulings that you 0:24:10.480 --> 0:24:13.320 probably care for, but in return you get rid of 0:24:13.440 --> 0:24:16.639 five you don't care for, and depp shot as you 0:24:16.760 --> 0:24:22.000 take ten controversial rulings and you return them all to 0:24:22.200 --> 0:24:25.440 democracy or state courts. So you get you know, you 0:24:25.520 --> 0:24:29.200 get second, third, and fourth chances to win, but you've 0:24:29.280 --> 0:24:31.840 lost your national victory at the U. S Supreme Court. 0:24:31.920 --> 0:24:35.400 But in return for getting rid of a national defeat 0:24:36.000 --> 0:24:40.560 or five of them. And to my surprise, most students 0:24:41.000 --> 0:24:45.600 and most lawyers, most Americans, when I present this offer, 0:24:46.440 --> 0:24:50.720 they won't take the trade. And I think, I think 0:24:50.760 --> 0:24:53.800 what's going on is they, in some cases really prized 0:24:53.840 --> 0:24:55.600 the victory, so it's very hard for them to give 0:24:55.680 --> 0:25:00.239 up the victory. Um. There's probably a slightly amara Kin 0:25:00.320 --> 0:25:03.280 component with this, which is, well, we're gonna win in 0:25:03.320 --> 0:25:07.480