With President Trump’s nomination of Judge Brett Kavanaugh to fill the Supreme Court seat that Justice Anthony Kennedy will soon vacate, media attention has now shifted to the coming “battle” over his confirmation. Yet the outcome of that battle is essentially a foregone conclusion. In order to defeat Judge Kavanaugh’s confirmation, opponents would need to persuade not only two Republicans but also all three of the red-state Democrats who voted to confirm Neil Gorsuch last year. Absent the exposure of some previously unknown very serious wrongdoing by Kavanaugh, that is highly unlikely. And even in that event, and even if the Democrats manage to win control of the Senate in November, the Republicans could still confirm a like-minded or even more conservative nominee during the lame-duck session before the new year.
Accordingly, liberals who are distressed about the impending era of reactionary Supreme Court jurisprudence should probably direct most of their energy elsewhere. Yes, Judge Kavanaugh’s record should be subject to careful scrutiny, but the real point of that scrutiny is not to defeat his confirmation. Instead, opposition to the Kavanaugh nomination should be understood as a move in a long-term political struggle over the values the law protects and the role of courts in providing that protection.
But if liberal energy opposing the Kavanaugh nomination should be rationed, where should liberals pin their hopes? Writing in Slate, Mark Joseph Stern suggests that state supreme courts, relying on state constitutions, could be a site of liberal decision making. Stern points to the Iowa Supreme Court ruling last week holding that state’s law requiring a 72-hour waiting period for abortion invalid under the state constitution. With the likelihood that the solidified conservative majority on the Supreme Court will pare away or overrule a federal constitutional right to abortion and also imperil other liberal constructions of the federal Constitution, might state high courts ride to the rescue?
A Familiar Move
Stern’s suggestion is hardly novel. Over forty years ago, Supreme Court Justice William Brennan urged liberal attorneys who were tired of losing their federal constitutional cases to retool their arguments using state constitutional provisions.
In an influential 1977 article in the Harvard Law Review, Brennan—who was a New Jersey Supreme Court justice before assuming his seat in Washington—highlighted what he regarded as a salutary trend of state supreme court decisions construing state constitutional provisions to provide greater protection to individual rights than US Supreme Court decisions involving parallel provisions. Because state courts are the final arbiters of the meaning of state law, and because federal constitutional law is generally a floor, not a ceiling, such decisions are not subject to further review by the US Supreme Court.
Like Justice Brennan before him, Stern is right that liberal state supreme courts can soften the harsh impact of conservative rulings of the US Supreme Court. But there are serious limits to what state courts can do.
The states most likely to enact illiberal laws are least likely to have liberal supreme courts. And even when a red-state supreme court issues a liberal ruling, it will be politically vulnerable. As Stern acknowledges, after the Iowa Supreme Court found a right to same-sex marriage, three justices were recalled by voters. Meanwhile, Stern also notes that state constitutions are substantially easier to amend than the federal Constitution. Consequently, liberal state supreme court rulings may have a short shelf-life in conservative states.
Indeed, they may have no shelf-life at all. In response to liberal state supreme court rulings, conservatives have succeeded in amending some state constitutions to forbid state courts from construing state constitutional provisions more generously than their federal counterparts. Such “lockstep” provisions effectively eliminate an independent role for the state courts.
Sometimes a Ceiling
There is a further limit to the ability of liberal state courts to counteract conservative US Supreme Court rulings. Justice Brennan urged liberal state courts to construe rights more generously than had the Supreme Court. That will result in liberal results when the rights at stake are favored by liberals. But what about when the rights in question are favored by conservatives?
Supreme Court decisions limiting affirmative action on equal protection grounds, limiting campaign finance regulation on free speech grounds, and limiting gun control on Second Amendment grounds cannot be combated by the Brennan strategy, because the liberal objection to these decisions is not that they set the constitutional floor too low; it’s that they set the constitutional floor too high; or perhaps that they find a constitutional right in these areas at all.
How will the replacement of Justice Kennedy with Judge Kavanaugh affect constitutional law? The answer differs depending on whether the Court overrules decisions that upheld or invalidated laws.
Suppose the Supreme Court were to overrule Whole Woman’s Health v. Hellerstedt, in which Kennedy provided a fifth vote to strike down two provisions of a Texas law restricting abortion. A post-Kennedy Court might well reverse that decision and eliminate the federal constitutional right to abortion altogether. Yet if so, it would still be open to voters in blue states to permit abortion. It would even be open to liberal red-state supreme courts to find a state constitutional right to abortion, at least pending recall or reversal by the voters.
But now suppose the Supreme Court were to overrule Fisher v. University of Texas at Austin, in which Kennedy wrote the opinion for a five-justice majority allowing some consideration of race in university admissions. It is not difficult to imagine the post-Kennedy Court reversing Fisher and invalidating all race-based affirmative action. State colleges and universities in all states would then be forbidden from practicing race-based affirmative action (as would private colleges and universities, given the Court’s prior determination to treat Title VI of federal civil rights law as coextensive with equal protection in this context). But it would not be open to voters or liberal supreme courts in blue states (or any other color states) to allow affirmative action.
The Brennan state constitutional remedy responds to the problem of Supreme Court under-protection of rights. It is unavailing in response to Supreme Court over-protection of rights or the recognition of the wrong rights.
To counteract the damage that the Supreme Court will likely do over the next generation will require organized opposition on multiple fronts. Although state supreme courts can play at most a secondary role, that is no reason for liberals to withhold support from liberal candidates for state supreme courts. For example, University of Michigan Law School Professor Sam Bagenstos would be a great addition to the Michigan Supreme Court. I have worked with Sam, learned from his scholarship, and have great respect for his integrity. That’s why I have donated to his campaign.
Liberals—and even moderates—concerned about the direction of the US Supreme Court should not restrict their political activities to judicial elections, however. Fortunately, over the long run, the same strategy that will mitigate the immense damage that the current occupant of the Oval Office is doing to the American republic will also mitigate the harm that the Supreme Court will do: even in the face of gerrymandering, voter suppression, and barrels of anonymous cash from the well-heeled, liberals need to win elections at every level. That, and not the made-for-tv-drama of the Kavanaugh nomination, is the political battle worth paying attention to.