William and Mary Law School

An excerpt from How State Supreme Courts Take Consequences Into Account

An excerpt from Professor Neal Devins’s forthcoming paper,  How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, (Stanford Law Review 2010), is below.  For the full article, please click here.


The year is 1993 and the Hawaii Supreme Court has just declared—as a matter of state constitutional law—that the state prohibition of same-sex marriage constitutes gender discrimination.  Within a few years, thirty-five states enacted laws prohibiting the recognition of same-sex marriages and Congress, responding “to a very particular development in the State of Hawaii,” enacted the Defense of Marriage Act. In Hawaii, voters overwhelmingly approved a state constitutional amendment authorizing the legislative prohibition of same-sex marriage. For Bill Eskridge, the Hawaii decision was disastrous, “provok[ing] the biggest antigay backlash since the McCarthy era.” For Andy Koppelman, however, Hawaii “put the issue of same-sex marriage on the national agenda” and, in so doing, “was a triumph for gays.”

Fast forward to 2003 and the Massachusetts Supreme Court’s ruling that, under the Massachusetts Constitution, same-sex couples have a right to marry. Throughout the nation, Republicans seized upon this issue, using it to bolster their prospects in the 2004 elections. President Bush called for a constitutional amendment banning same-sex marriage; congressional leaders pushed both for that amendment and for legislation stripping federal courts of jurisdiction in same-sex marriage cases; state officials backed constitutional amendment proposals in thirteen states. And while there is some dispute about whether the same-sex marriage issue was decisive in President Bush’s reelection or in Republican victories in Congress, there is little question that the Massachusetts decision did not sit well with a majority of Americans—as revealed both in public opinion polls and in voter approval of all thirteen same-sex marriage ban proposals. In Massachusetts, however, same-sex marriage carried the day—not only did 2004 efforts to derail the court’s decision fail, Massachusetts voters rewarded opponents of a proposed constitutional ban on same-sex marriage (reelecting all opponents while ousting some proponents of the ban).

Both the popular press and academic commentators largely ignored the fact that Massachusetts voters stood behind the same-sex marriage decision. Mike Klarman discussed only out-of-state “backlash” in his assessment of the decision; Gerry Rosenberg said the decision, “perhaps more than any other modern case, highlights the folly of Progressives turning to litigation in the face of legislative hostility”; Jeff Rosen said that the decision “created a dramatic backlash,” linking out-of-state events to “national opinion polls” disapproving of same-sex marriage. Judge J. Harvie Wilkinson also lamented the proliferation of constitutional amendments that followed in the wake of the Massachusetts decision, claiming that constitutions should be “articulations of fundamental rather than positive law” and that the amendment craze that followed the Massachusetts decision exemplified the “over-constitutionalization” of state constitutions.

Reactions to the Massachusetts and Hawaii decisions are diverse in many respects. At the same time, the most visible academic and popular commentary about the political impact of these decisions focused on national concerns.    National measures of what constitutions should look like and what consequences matter have been deployed in leading law review and popular press assessments of these decisions. The idea that out-of-state backlash might be a poor metric for judging state court decision-making has not been a focal point of leading academic commentary. The idea that state constitutional systems are fundamentally different from each other has played next to no role in assessments of these and other same-sex marriage decisions. Even though it is understandable that national publications would focus on questions of nationwide concern, there is a baseline problem when it comes to academic commentary about the consequences of state court decision making. State supreme court justices have jurisdiction over a single state, not the entire nation. They are experts in the law and politics of their state. That is not to say that they cannot learn from the experiences of other states, nor is it to say that they do not care about their national reputation or about whether their decisions will advance favored policies throughout the country.1At the same time, there is a striking disconnect between commentary about the consequences of state supreme court decision making and the actual jurisdiction and expertise of state courts. Along the same lines, critiques of the length and sweep of state constitutions often employ a baseline that is moored to the Federal Constitution.  The fact that each state is somewhat autonomous and that state constitutions may reflect distinctive political, historical, and cultural moments is sometimes lost in this analysis.

In the pages that follow, I will advance a state-centered understanding of state constitutionalism. My focus will be on consequences, that is, the incentives and expertise of state supreme court justices to think about the nuanced literature about whether and when courts should take backlash risks into account. Like the above-described scholarship on same-sex marriage, this scholarship is largely nationalistic in focus. It either deals explicitly with the U.S. Supreme Court or makes use of theoretical and empirical models which assume life tenure for judges, a difficult to-amend constitution, the availability of justiciability-based avoidance techniques, and a large information problem for judges determining whether there will be outrage and what the consequences of that outrage will be.1Indeed, with the very important exception of state court responses to judicial election risks, legal academics and political scientists are yet to grapple with, among other things, the question of whether state supreme courts should make use of certiorari denials to steer clear of politically controversial topics and whether state supreme courts should take into account the potential nullification of their decisions through a constitutional amendment.

In this Article, I will provide a preliminary assessment of what consequences state supreme court justices are likely to take into account. I will also consider the ways in which a state supreme court justice can take out-of-state consequences into account. By focusing on the implementation of state court decisions and the reputation of state supreme courts, I will not comment on whether state courts should engage in doctrinal percolation—that is, the practice of one state court looking to another state court’s interpretation of analogous constitutional provisions. Likewise, by looking to the ways that state supreme court justices interface with other political actors and voters, I will not address the methodological question of whether state courts should rely on state-specific sources (the text and history of their state constitutions) and, in so doing, “develop a coherent discourse of state constitutional law.”   

My analysis will proceed in three parts. Part I will explain why academics often look to nationalistic norms in assessing state supreme court decision making and why it is that state constitutions are fundamentally different from the Federal Constitution and from each other. Part I will also explain how it is that states borrow both from each other and from the Federal Constitution. Consequently, although state constitutional provisions cannot simply be lumped together into some unified view of state constitutionalism, states are part of a national system and, as such, can learn from each other in important ways. Part I will also pave the way for subsequent discussion of whether state supreme courts should take implementation concerns into account—looking at provisions of state constitutions governing direct democracy, judicial elections, and the power of state courts to sidestep issues by denying certiorari.

Part II will shift the focus to the question of whether state courts have either the incentive or the capacity to be consequentialists. After providing a brief overview of the dominant political science models governing U.S. Supreme Court decision-making, Part II will sort out what those models suggest about state supreme court decision-making. In so doing, Part II will examine whether state supreme court justices are likely to take account of judicial elections, ballot initiatives, and other implementation concerns (including out-of-state backlash). Part II, moreover, will assess the capacity of state supreme courts to assess backlash risks. Throughout this discussion, I will call attention to the ways that states are different from each other but can learn from each other. In particular, fundamental differences in state constitutional systems and state norms highlight profound differences in backlash risks; at the same time, state justices can look to the experiences of other states in assessing in-state backlash risks.

Part III will link Parts I and II by considering the ways that state supreme court justices can assess in-state backlash risks by looking to the unique features of their own constitution, to the political norms of their states, and to the experiences of other states. The focus will be a case study on same-sex marriage. Initially, I will highlight how state courts, in fact, take into account both the design of their constitution and in-state political norms. I will then explain how state supreme court justices can also assess potential in-state backlash risks by considering the experiences of other states. Part III therefore highlights how state supreme courts are at once distinctive and part of a nationwide system and, in so doing, shows how state-centered constitutionalism can facilitate the shaping of constitutional values throughout the country.