Judge Jeffrey Sutton on 'Who Decides?'

So tell us why you decided to write a sequel. Yes, the first book focused on individual rights, say, the right to free speech, free exercise of religion, equal protection, the things we know the most about in the federal and

state constitutions. The second book is focused on structure. And structure to some may seem a little less interesting, um not quite as exotic as an individual right that protects, for example, But the more you think about it, the more you come to appreciate that structure is far more important when it comes to a constitution than the individual

rights protected. There A great way to illustrate that is you can have lots of individual rights in the constitution, as the old Soviet Union did, and not have any place to enforce them. So structure is what separates the different branches of government, the federal government from the state, and ultimately it's probably the best protection of liberty there is, or at least it's been shown to be the best

protection of liberty in American history. So the idea was to talk about rights in this book, but also to put them in the context of the various ways in which our state and federal constitutions separate power and ultimately, if all goes well, do their best to balance power. So with so many major disputes or controversy shall issues these days, we hear people say, well, we'll see what the courts decide about. This has judicial power grown so that has an outsized role in our society compared to

the other branches of government. Well, a way to think about that is that I don't think there's been a country in world history that has embraced judicially enforceable rights more than we Americans have. Part of it is the success of the courts. Take the Brown case, which is such a singular moment in American history and in which the court rightly gets a lot of credit for bringing Jim Crow South to its heel. So I think one reason we embraced judicially enforceable rights in this country, whether

at the federal or state levels, it's been successful. The reason that perhaps put a pause button on that. It's not so much that it's not a good idea to identify new judicially enforceable rights, but perhaps we've fallen into the danger of the peril of a single story where the only source of those rights that we think about tends to be the U. S. Constitution, and the only protector of those rights tends to be the U. S.

Supreme Court. That seems to be perilous. You know, if you were to look at the number of cases filed in the court system that's you know, it's one two hundred one are in the state courts. So most of the places where the rule of law exists or doesn't exist, you know, as in the state courts to start. And the second point is to not lose sight of the fact that we have this second set of protections. When we think our liberty or property rights have been put

at risk. You can lose a case at the U. S. Supreme Court under the federal Constitution and still have a right to convince state court to rule that this state or local law violates. An independent source of rights are state constitutions. So part of the story is that we do embrace judicially enforceable rights in America, There's just no doubt about it. But another part of the story is to remember that the U. Spreme Court is not the

only guardian of our rights. And when it comes to every state and local law in this country, there are two sources of protection in the court system, not just one. So why do you think it is that we placed such importance on what the Supreme Court rules? Well, you know, the US Supreme Court, of course, has national authority, and if one is fortunate enough to win there, it means

your victory applies across the country. That's especially true when it comes to a constitutional case where you convince the court to nationalize a position under the constitution. That means you not only have a national victory with respect to that right, but it means that no one is allowed to vote on it or do anything that's different from

the Supreme Court's decision. So there are lots of incentives to go to the federal court to seek relief, and if one is pained relief, there are lots of incentives to keep that victory, because it is pretty impressive to create a rule for three million people in fifty one jurisdictions and to prohibit democracy or other litigation from being relevant to that particular issue. So I think that's perhaps

one feature of what's going on. And you know, as I pointed out with the Brown case, it's a proud moment in American history, and it's it's probably the case most Americans know about. So when they think of constitutional rights, it's understandable they would think of the U. S. Supreme Court in the US Constitution. One reason I wrote these

two books is to help with this education deficit. I think the last time we had a poll on this point, fewer than fifty percent of Americans knew their state even had a constitution, which to me is quite ironic, since the federal constitutional rights that we embrace and care so deeply about all originated in state constitutions, the early state constitutions after seventeen seventy six, where of course, the source code for the eventual federal Constitution in seventeen eighty nine,

and I would say for every amendment after that, you talk about Chief Justice John Robert in his confirmation hearings, he compared the role of a judge to an umpire at a baseball game. And this has become famous already because there's been so much hearkening back to it and criticizing it as way too basic. Do you think it would have been better not to make that comparison? Oh, I wish I'd thought of it during my con hearing.

I thought it was brilliant, you know, confirmation hearings, as I can attest, I was only at the Court of Appeals level, but they're not easy, and you're trying to explain things in a way that are understandable both to the Senators and Americans in general, particularly when it comes

to a U. S. Supreme Court confirmation hearing. And I thought the analogy to baseball was a good one, and particularly as lyned that nobody goes to a baseball game to watch the umpire, and so I think what he was identifying with the judicial ideal, and he was trying to present it in a way that was understandable to everybody.

So I quite liked it. I I appreciate the scholar scholarly, I wouldn't call it critique, but scholars saying, well, is it possible that judges have a little more discretion than umpires, You know, maybe? So. I don't think he was disputing that. He was just trying to make the point that our job is not to make the rules. Our job is to just say, whether you know, one side wins or one side loses the thing. I think that is another way, though,

if we want to stick with analogiese. In baseball. The thing that I think is difficult about judicial review, which is to say, when the courts constitutionalize an area that people care deeply about, what gets tricky is that at that point there really aren't just two players in the game.

There really are three players in the game. So Congress wants to do something, the President says you can't do it, and the court has issued decisions in the area, all three branches of government are now going to participate in that dispute. So the same is true with any case, any individual rights case. Once the court says the Constitution applies to an area, they are a player in the game and defining what that right means. And I think that's a problem that I think is just endemic in

judicial review. And another way of putting it is we all embrace the idea of the courts being able to check the political branches, because separation of powers is so central to American government from the beginning, whether it's the state or the federal constitutions. The trick, however, over time, is that separation of powers doesn't lead to an imbalance

of power. And the one thing that I think the framers of the Constitution would be surprised to see is how much authority the federal courts now have relative to the modest role they were perceived to have at the founding. And you know, one might be inclined to criticize federal judges like me for that. I appreciate the point. But another or possibility is to wonder if we, the American people, are the ones to blame. In other words, we seem

to like it. We seem to like going to the federal courts to figure out whether the Constitution resolves this particular policy debate or that particular policy debate. And I wonder if we Americans should look in the mirror and say, is this really a sustainable system going forward that we put life tenured federal judges, five or nine members in the US Supreme court in charge of some of the larger policy disputes in American government. That seems to me

an idea worth thinking about. Because the odds are high. If we stay down this road, you know, you probably win half the time and lose half the time. And I guess that's good to days you win. It's a little frustrating when you can't vote on something you care deeply about, and I sometimes wonder if we might do better to use our state courts a little more. The stakes are a lot less high when you constitutionalize an issue in Ohio, for example, as opposed to the whole country.

The other of benefit of looking to our state courts and state constitutions is experimentation is of a virtue of federalism that I think everybody still embraces in these polarized times. It's hard to find things in American government we can all agree about, but I think we still agree that you're not sure what to do with the difficult policy problem.

It's not a bad idea to follow Justice Brandis's advice and let the brave state try this experiment, and if it works, let another state, and eventually maybe many states follow it. And if it really works, if there's truly a winning insight. Why at that point you can nationalize the insight. The Brandise, of course, was referring to the state legislators state legislatures as the sources of this experimentation.

In one way to summarize who decides in fifty one perfect solutions is I'm simply suggesting that perhaps we should use our state courts as laboratories of experimentation when it comes to some of the more difficult constitution of debates that the country is facing. And if you think of the constitutional bates that seem to generate the most press attention that most Americans know about, they're ones that are about very generally worded guarantees, what processes do, When is

speech free? When is the search unreasonable? These are terms that can generate disagreement, for sure, and a lot of different perspectives, And they seem like the kind of areas where the Brandise insight might also apply. Why not let state courts be the experimenters in chief, the first responders when there's a new policy problem that implicates individual liberty or property rights or quality concerns, and let the experimentation unfold.

And sometimes that experimentation will lead to a national ruling by the US Supreme Court, where we nationalize the constitutional right, and other times it might turn out that this is a big, diverse country and there might be one or two or three reasonable ways to handle the matter, and we could allow some variation to account for a variety of circumstances. Why do you think it is that litigants, when they're deciding to litigate about these rights go right

to the federal courts. Well, I think they would do what I did when I was in litigation, which is do what's the best by your client. And there's no client who wouldn't prefer a national victory. So you know, whether it's a state, whether it's an individual, whether it's an an interest group, everyone would prefer to see the right they care deeply about protected equally throughout the country.

I appreciate as a as a former practicing lawyer with clients, it is the lawyer's job to really it's a fiduciary duty to do the best by your client you can. And if the federal courts offer a way to nationalize a victory, well I think it's quite understandable that they're doing that. The thing I sometimes wonder is you know, here, I am a federal judge, and I sometimes think it might be useful for us from time to time to listen to those state cases, maybe put a pause button

before we nationalize something. Quite often, some really terrific insights can come from the state courts. And you know, if if the federal courts wait a little while sometimes before they identify these new national rights, they also lower the stakes of their decision. Right if you know, thirty of fifty states have already recognized a right, that means the Supreme Court decision only affects twenty states at that point,

so that lowers the temperature of the ultimate decision. But you know, there's another another way to think about this, which is that sometimes the US Suprint Court puts up a stop sign. So most recently in the rout show case from a few years ago, they said that the fourteenth Amendment does not cover claims of extreme partisan jerrymandry.

There's a very close case. It's by four the Chief Justice wrote, the Majority Justice Kagan wrote, powerful descent, and it concerned a topic that I think so at one level every American agrees is troubling that extreme partisan garmyndering has not been good for the country. I don't think there's a single citizen out there that thinks we need more of it. So we all agree that it's something

that is hurting democracy, our civil discourse. Well, once the US Spring Court puts up a stop sign in routcho and says before too, demendment doesn't have a role to play here. Those who have lost those cases, you know, they have two options. Option AY embrace unhappiness, an option B. Go to the state courts. And it turns out in

that area people have successfully gone to state court. You have decisions by the Pennsylvania, North Carolina, and Florida court systems that have recognized claims in that exact area under their state constitutions. And there's also of the recourse is going to the state legislature for a compromise and in some cases going to amendments to state constitutions to try to limit extreme partisan gerrymandering. So I see state constitutions

as having to roles here. One. They're very good news for the individual that loses at the U. S. Supreme Court when it comes to challenging the state or local law.

It gives you a second shot, a second chance at victory, and then I see them as potentially really helpful when it comes to the very difficult job US Supreme Court justices have in identifying new federal constitutional rights, particularly unenumerated rights or substance to process, where it's just not a lot to go on in the U. S. Constitution, and the states can be very helpful resources when it comes to the meaning of these guarantees because they all originated

there in the state constitutions, and they can be helpful for those justices to account for shifting norms in society, you have to look for evidence of those shifting norms outside the judge. You have to look forward out in society, society some objective place, and state legislatures, state courts, and state constitutions can be really terrific evidence of shifting norms in society. So do you think a federal judge should

should be looking more asking advice from a state supreme court? Yeah? So, I think one of the beauties of UM paying attention to state courts and state constitutions is that it's a neutral principle and it helps everybody. So I tend to lean towards the UM tax dualist original wast approached to interpretation and the reasons state constitutions could be helpful to me.

Is there, of course the source code for the federal guarant t because all of our original rights throughout of state constitutions, and so a state court decision could be really helpful to me and understanding what the federal guarantee means. Now, some judges and justices are primate pragmatic. When they get a close case, they want to make sure that their interpretation um is not going to make things worse that

ideally it will make things better. Well, for the pragmatic, pragmatic federal judge or justice, the state court decisions can be hugely helpful because they can illustrate whether this new interpretation help solve a problem or God forbid, made it worse for the living constitutionalists. For those judges and justices that in some settings will account for shifting norms in American society, the state court decisions can be really valuable because they can show that, indeed, a lot of Americans

now think this right or that right is quite consequential. Um. You know, the marriage equality story illustrates this last point in Justice Kennedy's opinion in the Burgher fell. He pointed out that back in one or seventy two, the U. S. Supreme Court had rejected a marriage equality claim in the context of a Fourteenth Amendment dispute coming out of the

state of Minnesota. And he pointed out since the early seventies, state courts had recognized a right to marriage equality under their state constitutions, state legislatures had gotten rid of the bands on gay marriage, and if some state constitutions have even been amended to that effect. And he pointed out that this dialogue informed the meaning of to process in equal protection at the federal level. So one of the things I really enjoy about state constitutions is they're valuable

to everybody. They're valuable to those who have lost at the US spren Court, They're valuable to those who are trying to win at the US Spren Court. And they're valuable too liberals and conservatives and every method of constitutional interpretation there's ever been. As you know, the public approval of the Supreme Court is at its lowest in modern times.

And you talk in your book about, you know, the confirmation of Judge Bork and and how that perhaps started the partisanship of the selection process is there any way at this point to take partisanship out of judicial selection. Well, one of the chapters of Who Decides takes on the story of judicial selection methods. And you know, when the state and federal constitutions were being put together, no one

thought of electing judges or justices. It was always a selection process that involved the legislative branch or the decaded branch. And over time of the state court judges are now elected in some way or another, whether through retention or partisan and nonpartisan elections. So we have a world where the state court system has seen its selection process evolved

in much more democratic ways. And you know, those elections, even when they're nonpartisans, still involved fundraising and certainly what looked to be political components to them. Um, you know, I think it's a I think it's a difficult problem. One illustration of the problem is that, you know, by too many accounts to deny the two thousand sixteen presidential election turned on a sufficient number of Americans choosing a vote for isn't of the United States as a proxy

to build one seat in a nine member court. That suggests that the American people have become very engaged and interested in who was on the U. S. Supreme Court um, and you know, whatever the reasons for that development, however it is, we got to this point. I think we can all agree that's probably not the system that the founders designed, and we probably all can agree that's not

healthy for the federal courts. I went through the process roughly twenty years ago and came out of it with a vote for a lowly seat on the Court of Appeals, and my boss, Justice Scalia, back in the mid nighties was confirmed zo to obviously a far more important jump,

and so that does suggest things have changed. What's very difficult about this problem is what the excess strategy is, because you have I mean, if you think of some of the most intense fights we have at the court, they're actually not about new rights, they're about preserving old ones. And that's really complicated. People get used to having a right protected by the Court as opposed to their state court or their state legislature or Congress, and that's a

that's a difficult problem to extract yourself from. And I personally think we are to have an imbalance of power situation at this point, and shrinking the footprint of the federal courts is not something that's easy to do. When it's very large and a lot of people care deeply about some of the rights that are covered by that footprint, it's very difficult to turn things around because no one wants to give up power and the partisanship gets worse all the time. But one way to think about it is,

I'll try this on. You do this thought experiment where you're you get people together, and if someone is progressive, they need to find a conservative friend. And by the way, if they don't have one, it's the Americans could do better on that front. And then the same for the conservative. The conservatives should find a progressive friend. And if they

don't have one, time to get one. And the two of them sit down and they each each get to identify the constitutional rulings of the US Supreme Court, let's say the last seventy years, and they each get to pick five that they don't care for um. And so you know what ends up happening with this thought experiment is the progressive, Oh, a progressive might not care let's say for Citizens United or Heller might be two examples. And let's say the conservative might not care for, say

Casey or a criminal procedure case. But anyway, they each get to pick five. I asked audiences this all the time, and my law students, would you take the trade? Another way? You have to give up five constitutional rulings that you probably care for, but in return you get rid of five you don't care for, and depp shot as you take ten controversial rulings and you return them all to

democracy or state courts. So you get you know, you get second, third, and fourth chances to win, but you've lost your national victory at the U. S Supreme Court. But in return for getting rid of a national defeat or five of them. And to my surprise, most students and most lawyers, most Americans, when I present this offer, they won't take the trade. And I think, I think what's going on is they, in some cases really prized the victory, so it's very hard for them to give

up the victory. Um. There's probably a slightly amara Kin component with this, which is, well, we're gonna win in the end anyway, which I guess they must mean capture control of the US Supreme Court and get keep their five and get five more victories. Um. But they need to remember they're going against another American, and the odds are pretty high it's going to be going forward. They'll win half, they'll lose half, and they won't get to

vote on any of them. You wonder if this isn't a problem for American citizens more than is a problem for American judges. Thanks so much for being the Bloomberg Law Show. Judge Sutton, that's Judge Jeffrey Sutton, the Chief Judge of the United States Court of Appeals for the Sixth Circuit, and his new book is entitled Who Decides States His Laboratories of Constitutional Experimentation. And that's it for

the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, spotifying at www dot Bloomberg dot com, slash podcast, slash Law. I'm Juan Grosso and you're listening to Bloomberg