21ST CENTURY FEDERALISM: A VIEW FROM THE STATES.

• Author: Sutton, Jeffrey S.

March 5, 2022

Thank you, Judge Rao, for the introduction, and thank you to UVA for hosting. My son graduated from the University of Virginia School of Law last year and was a member of the Federalist Society, so it's great to be back with you all. Thank you for inviting me.

It's hard to find a tasteful COVID story, but let me see if this one counts. In the Fall of 2020, I was teaching at Ohio State. And if you remember, that was not an easy time to teach or to manage a law school. Ohio State was trying to accommodate live learning, hybrid, and a little of everything.

On the first day of class, we are in an auditorium about this size at Ohio State, and we have the folks that are online projected on the screen. And then I have students suitably spaced in front of me, everyone with masks. And if you've taught with a mask or spoken for a long time with a mask, you know it's not easy. Your mouth gets dry, and it's just not great, but of course necessary, certainly back then.

And just as class was about to begin, I thought to myself, "Ah, I should have brought a bottle of water. One, my mouth's going to get dry. And two, it's a great explanation for keeping your mask down for a little while." But then I remembered that Ohio State, to its credit, put together a COVID-precaution goody bag. It had instructions, Ohio State masks, wipes, and at the bottom, a bottle of water. So just as we're about to start, I grab it, take a big sip, and then pause, "What is that?" Sanitizer.

To my credit, I did not spit it out on the people in front of me. And then I'm thinking to myself, seventh grade science, "Is this one of those poisons you extract, or do you dilute it? This must be a dilution situation." I don't tell the students what's going on. It's the first day of class, and it's still within the add-drop period. Who takes a class from somebody who drinks sanitizer?

So I calmly walk out of the class. Amazingly, for all its precautions, Ohio State left the water fountains going. And so I was able to drink a lot of water, get back in, and never tell my students what happened. And let me just alert you here: I don't think you need this alert, but the sanitizer taste does not go away quickly.

Some of you are thinking, "Well, there was a silver lining, right? You just had this big shot of alcohol, and what's not to like about that?" Well, I'm not a scientist, but there must be at least two types of alcohol. Hand sanitizer has none of the properties you might be thinking of. It just tastes really bad. So congrats to UVA for getting a really smart speaker to start things off.

I want to open by thinking about state courts, state constitutions, and federalism through a few lenses. The first is that of careers. I was not able to hear Governor Glenn Youngkin's remarks yesterday, but I was thrilled to hear that he recommended careers in state government, because I do too.

My biggest break as a lawyer was becoming the Solicitor General of Ohio in the mid-1990s. It may be true, as one of the professors said in the last panel, that going to Columbus is not as prestigious as going to D.C. I'm not so sure. I guess it depends on how you define prestige. If you define prestige as getting something done, I would say going to Columbus or Richmond is more prestigious.

But put prestige aside. The real point is that the states are nimbler and are a great place to go as a young lawyer if you want responsibility. Serving as Ohio's Solicitor General was the key break in my career. Maybe more importantly, it was my favorite job. I love my current job, but I never had a better job than being Solicitor General of Ohio. So, that's from the perspective of careers.

I'll turn now to the perspective of the rule of law. It's the rare law student that doesn't have some idealism. There can be practical reasons for going to law school, but I'd like to think most law students go to law school with some idealism in mind. They care about things like justice, rule of law, or fairness.

In this country, if you care about the rule of law, you must care about the state courts and the state constitutions that go with them. (1) In the last year for which we have numbers, 83,000,000 civil and criminal cases were filed in state courts. (2) The counterpart number in the federal courts is 400,000. (3) Eighty-three million to 400,000. If you drill down to just the criminal cases, it is 17,000,000 to 70,000. (4) With over 200 state criminal cases for every one federal criminal case, the states are where most liberties are lost or preserved and where the rule of law exists or does not.

So, I don't know how you can care about the rule of law and not care about what's going on in state courts. That is where so much of the action is. Every one of those cases, of course, is a case where state constitutions could make a difference. I can't resist saying that this probably explains why we have only one state court judge on the panel and two federal judges--because federal judges don't have as much to do. And the state court judges are so busy. They couldn't possibly come to UVA for...