State Constitutionalism in the Age of Party Polarization
49 Pages Posted: 31 Mar 2021
Date Written: 2019
Today, perhaps more than ever before, state supreme courts will have ample opportunity to be rights innovators. If then-President Trump is to be believed, the federal courts are increasingly populated by Trump judges who will not expand individual rights through interpretations of the Federal Constitution. Indeed, with three Trump appointees on the U.S. Supreme Court, there is every reason to think that the Court will restrict rights protections. Likewise, with a record setting number of Trump appointments to the federal courts of appeals, there is good reason to think that those courts will not be rights innovators. In the pages that follow, I will tackle the question of whether state supreme courts will fill in gaps left open by federal courts' interpretations of the U.S. Constitution. In so doing, I will explain why I am skeptical that there will be a renaissance of state constitutionalism in the age of party polarization. In particular, I will argue that-on matters where the U.S. Supreme Court has limited the reach of individual rights protections-state supreme courts are unlikely to fill the void by interpreting their constitutions more broadly than the U.S. Supreme Court interprets the Federal Constitution. That is not to say that the U.S. Supreme Court will always rule against individual rights for plaintiffs, but that state supreme courts will rarely use their state constitutions to buck U.S. Supreme Court decision-making. In part, state courts are subject to the "gravitational pull" of federal norms-an outgrowth of judicial elections and other democratic checks on state supreme courts. More than that, political polarization stands in the way of state experimentation. National interest groups and a growing homogeneity in both red and blue states stand as a barrier to state court innovation.
Keywords: polarization, state supreme courts, state constitutionalism, federalism, abortion, state districting
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