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Judges and Judiciary,
Constitutional Law

Jun. 3, 2019

An insightful look at state constitutional law

I recently attended a talk by Judge Jeffrey Sutton who sits on the 6th U.S. Circuit Court of Appeals. The subject was a book he recently wrote, “51 Imperfect Solutions: States and the Making of American Constitutional Law.” Oxford University Press, 2018.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on


A few months ago, my colleague Justice Kenneth Yegan and I gave a talk at a Center for Judicial Education and Research institute for appellate research attorneys. We discussed our opinions about opinion writing. Not easy to present without being opinionated. Of course, the justices for whom the research attorneys work have the final word (pardon the expression). Therefore the success with which we impressed or depressed the audience is difficult to assess. I leave to the readers of appellate opinions the judgment (again pardon the expression) about how successful we were in subverting from within.

Now a well-earned plug. These institutes and programs designed by CJER staff, judges and justices, and those of the California Judges Association, are significant factors contributing to California's premier judiciary. Justice Yegan and I attended one of the valuable programs at the institute. It featured a talk by Judge Jeffrey Sutton who sits on the 6th U.S. Circuit Court of Appeals. The subject was a book he recently wrote, "51 Imperfect Solutions: States and the Making of American Constitutional Law." Oxford University Press, 2018.

Judge Sutton is an engaging speaker, warm, self-effacing and down to earth. He clerked for Supreme Court Justices Lewis Powell and Antonin Scalia. He is an expert on state constitutional law and has written and lectured extensively about this and other subjects at Harvard and other law schools. I found it interesting that at his senate confirmation hearing in 2003, he was confirmed by a vote of 52 to 41. Perhaps the more liberal senators anticipated conservative rulings. They were partially wrong and partially right. In Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011), he ruled in favor of the Affordable Health Care Act. But in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), the Supreme Court reversed his majority opinion upholding legislation to ban same-sex marriages.

Judge Sutton spoke highly of our own state Supreme Court Justice Goodwin Liu who wrote in the Yale Law Journal 2019 an engrossing review of Sutton's book. I knew of Liu's interest in the subject. In 2017 he delivered the William J. Brennan Lecture on state courts and social justice at N.Y.U. School of Law. Justice Liu's lecture can be found in the New York University Law Review, Vol. 92, Nov. 2017, No. 5.

Many judges bristle when labeled liberal or conservative, me included. The opinions we write are the product of our best efforts to explain our reason for a decision that we think comports with the law. We leave it up to commentators and others to characterize our opinions as they perceive them. Yet, with apologies to Judge Sutton and Justice Liu, I was at first surprised by their mutual interest in the value of state constitutional law. But in the abstract of his article, Liu praises Sutton for inviting us "to understand state constitutionalism not solely or primarily as a liberal ratchet, but instead as a structural feature of our governmental system that modulates the timing, process and substance of individual rights enforcement."

However Judge Sutton may have decided certain cases, Justice Liu points out that "Sutton's account of state constitutionalism is neither liberal nor conservative." "Judge Sutton treats state constitutional debate in a diverse democracy and mitigating the risks of winner-take-all decision-making by the U.S. Supreme Court."

This calls to mind an article a few months ago in the Los Angeles Times by Jonathan Turley, a constitutional law professor at George Washington University. The article "Don't Pack the Supreme Court, Unpack It" argues in favor of an expansion of the U.S. Supreme Court to 19 members. Turley's scheme involves, among other things, limiting a president's appointment to the high court until the 19 number is achieved. Turley's legitimate concern is that under the present system a single "swing vote" decides a case that may have a profound and lasting effect on our nation. That one crucial vote for a particular case makes our high court a "court of one." I agree. No single judge should have that power. You can quote me on that.

While I am not holding my breath that Professor Turley's thesis will come to fruition in the immediate future, Justice Liu's illuminating analysis of Judge Sutton's thesis helps alleviate some of my concerns about an undue concentration of judicial power.

I hope to discuss in future columns Judge Sutton's and Justice Liu's analysis of state constitutional law. But what I particularly commend for your attention is Liu's discussion in part III of his piece in the Yale Law Journal, "State Courts and School Segregation." Liu discusses a recurring theme in federal constitutional law that the states through their legislatures, governors and courts are also the policy villains in the area of segregation. Liu illustrates that this is not always the case.

Justice Liu then offers an insightful discussion concerning what Judge Sutton might have said had his book included a narrative on school segregation. Liu gives examples of a "significant body of state decisions rejecting the legality of segregation when the Supreme Court decided Plessy v. Ferguson in 1896." Sutton's admiration for Liu's incisive analysis indicates he concurs.

Despite the added insights we may achieve through what Justice Liu tells us the core of Sutton's book: "the richness of judicial federalism is most evident when state and federal courts are engaging in a single discourse, interpreting similar texts or principles in their respective constitutions within a common historical tradition or common framework of constitutional reasoning." This approach gives all courts a richer storehouse from which to draw in deciding constitutional questions.

Nevertheless, however a court arrives at a decision, and whatever series of prior decisions and mores influence that decision, we seldom achieve a comfortable degree of certainty about how a court will rule.

I cannot resist the temptation to speculate how the redoubtable Judge Richard Posner would look upon the thesis advanced by Judge Sutton and Justice Liu. In an interview with Adam Liptak in the New York Times on his retirement in 2017, Posner seemed to have repudiated his earlier emphasis on social utility and economics as principles of his jurisprudence in favor of a more liberal, free-wheeling "pragmatic" jurisprudence.

Judge Posner stated that over the years his views changed, and in deciding cases he came to forget about the law and instead asked what is a sensible resolution of the dispute. If there is a legal obstacle in the way of a sensible resolution, Posner argues it is often easy to avoid.

This view of the law drives my colleague Justice Steven Perren nuts. But I think Judge Posner's current hypothesis is not as radical as it seems. In fact, judges may unconsciously decide difficult cases in this fashion. They all must write a coherent opinion in which they make a rational and plausible argument to support their point of view. Despite his outspoken views, Posner is not "lawless." And I think Posner would applaud Judge Sutton and Justice Liu. Their approach to constitutional issues gives Posner and all judges more tools to craft "a sensible resolution." Justice Perren and I briefly discuss Judge Posner's approach in an interview I conducted about him in an oral history of Court of Appeal justices. Soon to be seen on YouTube.


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