Independent state constitutional adjudication in Massachusetts: 1988-1998.

AuthorMarangola, Robert A.
PositionState Constitutional Commentary

    The independence of a state high court can be gauged by the frequency with which that court interprets its state constitution.(1) Such adjudication has become increasingly important in protecting individual liberties during an era of retrenchment by the Federal Supreme Court on decisions regarding fundamental rights.(2) Without the state constitution and, indispensably, the state high court interpreting that constitution, the protection of basic individual rights and liberties in that state is determined solely by the federal high court.(3)

    This Article is a decisionmaking profile of the justices of the Supreme Judicial Court of Massachusetts (SJC) in divided state constitutional cases over the last decade. The profile attempts to determine the extent to which this court engages in independent state constitutional adjudication. This court is appropriate to study for a number of reasons. First, since state courts often use the state's history and traditions as a basis for interpreting the state constitution,(4) the history of the state whose citizens were instrumental in giving birth to the independence of our nation provides reason to examine how that high court uses its state charter to define the breadth of individual rights. Second, the highest court in Massachusetts is one of the most highly respected state courts in the country.(5) Third, the Massachusetts Constitution and its Declaration of Rights were the models used by the drafters of the national constitution and many state constitutions.(6)

    Divided state constitutional cases were chosen because they tend to reveal the most about individual judicial philosophies since a judge feels strong enough about an issue to write separately about it.(7) Additionally, divided cases are helpful in revealing individual judicial philosophies by demonstrating the intra-court debate. Divided cases are especially revealing in a court such as the SJC, a court known to hand down few split decisions.(8) For the purposes of this study, "divided state constitutional cases" include unanimous decisions which present at least one concurring opinion challenging an aspect of the court's state constitutional analysis.(9) As will be seen, some of these concurrences proved as revealing as many dissents,(10) The divided state constitutional cases (civil and criminal) over the last ten years provide insight into the independence of the Supreme Judicial Court and the judicial philosophies of each justice. They form a basis for concluding that, true to its independent heritage, the highest court in Massachusetts is indeed independent, even if some of its members feel such independence is at times without justification.(11) The cases may also provide a limited glimpse into the future of independent state constitutional adjudication at the SJC.(12)

    Based on an analysis of their voting records, dissenting, concurring, and majority opinions in these divided cases, attempts were made to characterize each judge as either "liberal" or "conservative" in their views of individual rights and liberties.(13) Where discernible, the justices' views on the role of the SJC and the Massachusetts Constitution as sources of protection of individual rights independent of the United States Supreme Court and the Federal Constitution are discussed, as well as the methods of state constitutional adjudication that they utilized.

    This type of review can be helpful to members of the bar arguing constitutional cases in front of the SJC. For example, if an attorney is aware that the voting records reveal that three justices typically vote conservatively on a constitutional issue and three justices typically vote liberally, knowledge of the views of the moderate "swing" justice can help an attorney tailor his or her arguments in order to persuade the swing justice. To illustrate, if the opinions of the swing justice in search and seizure cases reveal that when the swing justice voted liberally in dissent, he or she frequently emphasized the negative conduct of the police (as opposed to the effect on privacy rights), a criminal defense attorney would want to emphasize the deplorable conduct of the police and the policy of deterrence underlying the suppression remedy in order to persuade the swing justice. Knowledge that the swing justice favors independent state constitutional analysis would likewise be useful to a criminal defense attorney or a plaintiff's civil attorney arguing that a constitutional right has been violated and that the court should protect that right under the state constitution. However, the SJC's ability and willingness to interpret its state constitution should not mislead litigants. Attorneys taking appeals before the SJC should be aware that merely mentioning the state constitution in the hope of getting the court to find in favor of a constitutional violation is unlikely to occur. Rather, the state constitutional argument will be deemed waived on the grounds that there is insufficient appellate argument to warrant court review.(14)

    Part II presents a brief overview of state constitutional adjudication, both generally and in Massachusetts.(15) Outlining some of the different methods state courts use in deciding constitutional cases and the various labels attached by commentators to those methods, Part II ends with a discussion of the use of those methods by the SJC in order to gauge its independence as a state high court.(16) Part III examines the voting patterns and tendencies of the individual justices during divided state constitutional cases from the last decade, revealing that certain justices are easily characterized as "liberal" or "conservative," while other justices are less susceptible to such categorization.(17) Part IV concludes that, while the justices utilize the Massachusetts Constitution to protect individual liberties beyond what the Supreme Court has determined to be the federal minimum, the justices of the SJC frequently do not agree on when to extend greater protection under the state constitution and what level of such protection to be provided.(18)


    The analytical approach that a state court chooses to take in interpreting its constitution can reveal the level of independence with which a state court views its role in the federalism system. Commentators have attached various labels to different approaches or methods of deciding state constitutional cases.(19) Perhaps the four most commonly known approaches to state constitutional adjudication are lockstep,(20) primacy,(21) supplemental or interstitial,(22) and dual reliance.(23) Courts using the lockstep model rigidly follow the Supreme Court's statements of federal law when confronting a challenge under a state constitutional provision.(24) When a constitutional issue is presented to a state high court and both the state and federal constitutions are raised, the courts that look to the state constitution first, before analyzing analogous federal rules, follow the primacy approach.(25) Under the supplemental or interstitial model, a state court will focus its attention on whether the state constitution provides greater protection than the Federal Constitution.(26) Courts using the supplemental approach look to the federal constitutional rule first,(27) deeming Federal Supreme Court decisions presumptively valid and persuasive, and using them as guidance before the state constitution is even considered.(28) The dual reliance, or dual sovereignty method is one in which, as its name suggests, the state court looks to both federal and state constitutional law in reviewing a case, even if the court decides the case solely on state constitutional grounds.(29)

    The SJC takes a relatively independent approach to the adjudication of constitutional issues. In the majority of the divided state constitutional cases of the last decade, the SJC undertook an analysis of the Massachusetts Constitution, independent of federal constitutional law, in arriving at a decision.(30) This is true even when the court determined that the Massachusetts Constitution provided no greater protection of a right than the Federal Constitution.(31) Although the court did not adhere to any single approach in analyzing constitutional cases, the approach (when an approach was discernible at all) most frequently followed in the divided cases was primacy.(32) In some of these cases, readers were rended that the Massachusetts Constitution was the model for the Federal Constitution.(33) While the approach utilized more than others was primacy, the SJC does indeed look toward and place great weight on Federal Supreme Court precedent? Primacy was the method in fewer than half (forty percent) of the divided cases.(35) Also, most of the judges of the SJC during the last decade tended to look to the Federal Supreme Court first in deciding constitutional cases.(36) This explains the combined utilization of the supplemental and dual reliance approaches only two percent less than the primacy model.(37)

    After primacy, the next most frequently used mode of decisionmaking was the dual reliance approach, in which the SJC incorporated aspects of both federal and state constitutional analysis in its opinion.(38) In cases where the court used the dual reliance approach, it was sometimes unclear whether the court, after analyzing both federal and state constitutional law, based its decision on the federal interpretation, the state law interpretation, or both.(39) The absence of a plain statement that the court based its decision on state constitutional law leaves such decisions open to review by the Supreme Court.(40)

    There are nearly the same percentage of cases where the court took a much less independent approach by following the supplemental method.(41) It is unclear why, in some of its cases which analyze federal law, the SJC stated clearly that the decision rested on independent state...

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