Expanding rights under state constitutions: a quantitative appraisal.

• Author: Cauthen, James N.G.

Much of the scholarship addressing state supreme court(1) interpretation of state-based liberties is what social scientists refer to as qualitative analysis.(2) Decision-making is investigated in general terms,(3) with regard to particular courts(4) and particular rights, including freedom of expression(5), equal protection(6) and rights of the criminal defendant.(7) Some works take a quantitative approach(8) to the study of the new judicial federalism(9), and more are beginning to appear, primarily in political science and criminal justice literature.(10) However, like most of the qualitative investigations, many of these quantitative works tend to focus on state court development of an independent body of state constitutional law, i.e., deciding cases based on state constitutional law although the result may be to follow U.S. Supreme Court analysis of the federal analogue.(11) Fewer studies address the extent to which supreme courts use their state constitutions to extend rights beyond federal levels of protection.

Alan Tart, a renowned state constitutional law commentator, has correctly noted that quantitative analyses, which treat individual decisions as equal units, often obscure the impact of individual cases.(12) Nonetheless, such studies add to our understanding of the behavior of state courts in the new judicial federalism. Indeed, the knowledge uncovered through these quantitative works allows us to reach more concrete conclusions concerning the current and future role of state courts in civil liberties policymaking.(13)

None of these quantitative analyses have included a systematic investigation of the extension of rights across numerous issues.(14) For example, in what areas have state courts been the most active in extending rights? In what areas have courts been the least active? What may explain these differences? This article addresses these questions through a quantitative investigation of the extension of rights over the first twenty-five years of the new judicial federalism. The analysis focuses on criminal justice issues and issues falling within the scope of the First Amendment of the Federal Constitution.

The investigation indicates that over the first twenty-five years of the new judicial federalism, state supreme courts tended to follow the U.S. Supreme Court's analysis of the federal protection when interpreting the state constitution, expanding rights in only about one-third of the state constitutional cases. However, the rate at which state courts expanded rights varied significantly across issue areas. While some issues were in areas in which the Supreme Court had taken a conservative turn, others were not, suggesting that state courts provide broader rights under the state constitution for reasons other than to replace a formerly guaranteed federal right.

Part I of this Article will review some of the major published quantitative investigations of the new judicial federalism.(15) Many readers of this annual commentary may not have come into contact with these studies, given that they primarily appear in social science literature. Part II sets out the research methods used to collect and analyze the data,(16) and the results are presented in Part III.(17) Finally, Part IV concludes that although this quantitative study confirms state courts generally follow the federal interpretation of counterpart state constitutional provisions, this practice in fact varies significantly across different issue areas.

1. QUANTITATIVE STUDIES OF THE NEW JUDICIAL FEDERALISM

   Quantitative studies of the new judicial federalism generally fall into one of two categories. First, there are studies that address the extent to which state courts use their constitutions to resolve civil liberties claims, regardless whether the decision follows federal precedent or recognizes broader rights under the state charter.(18) Second, there are those that investigate the extent to which state courts, when using their constitution to resolve civil liberties claims, extend rights beyond levels guaranteed in the Federal Constitution.(19)

   Much of the early quantitative work investigating the new judicial federalism fell into the first category and provided modest support for state court reliance on state constitutions. For example, in her study of decision-making on six state supreme courts(20) during 1975 and 1977, Susan Fino found that 53 of 304 (17.4%) constitutional decisions were based on state grounds.(21) Later focusing on all states, Fino found that only 6.7% of equal protection cases decided between 1975 and 1984 were based on independent state grounds.(22) In this second work, beyond counting cases, Fino also investigated possible institutional and legal explanations for relying on the state constitution. She found that state supreme courts with longer judicial terms were more likely to rely on the state constitution to resolve equal protection claims, suggesting courts more insulated from public pressures were more likely to participate in the new judicial federalism.(23) However, region, political culture, and judicial selection method were not statistically significant explanatory factors.(24)

   Other quantitative studies falling in the first category also focused on decision-making in individual issue areas. For example, Michael Esler found that only 54 of 249 (21.6%) self-incrimination cases decided by state high courts between 1981 and 1986 were based solely on state grounds.(25) Only eight states based at least one-half of their self-incrimination decisions on state constitutional law, and fourteen states based no decisions on state constitutional law, confirming much of the earlier research that showed a relatively low percentage of decisions grounded on state guarantees.(26)

   One of the most comprehensive quantitative studies on state constitutional reliance analyzed 2886 judicial review decisions rendered between 1981 and 1985.(27) The authors concluded that when state courts based their decisions solely on state constitutional grounds rather than federal constitutional grounds, laws were more often declared unconstitutional.(28) Specifically, they found that in the 194 cases in which courts were faced with a challenge to a state statute based on both the federal and state constitution, and the decision struck down the provision, fifty-two decisions (27%) were grounded on the state constitution, thirteen decisions (7%) were based solely on federal grounds, and 129 decisions (66%) were based on both state and federal grounds.(29) In addition, they found that state constitutional challenges based on equal protection and non-criminal guarantees were more successful than were challenges based on due process rights or rights of the accused.(30) Overall, their work provided some limited support for the new judicial federalism in the context of state constitutional challenges to state statutes and suggested that state court reliance on their constitutions varied across issues.(31)

   The second body of quantitative research has focused on the extent to which state supreme courts, when interpreting their constitutions, have extended rights beyond federal levels. While some scholars have tabulated state court decisions extending rights,(32) and others have studied the extension of rights in small numbers of states,(33) there have been few comprehensive investigations of state court extension of rights beyond those granted in the U.S. Constitution.

   The leading work in this category of research is Barry Latzer's study of state constitutional criminal justice decisions rendered between the late 1960s and 1989.(34) Latzer identified 232 "rejections" of U.S. Supreme Court reasoning by state high courts in criminal procedure cases and 489 cases of "adoptions."(35) Each "rejection" was an extension of protections beyond the protections provided in the U.S. Constitution.(36) Thus, in criminal justice cases, state courts engaged in state constitutional policymaking in approximately thirty-two percent of decisions interpreting their state constitutions, leading Latzer to conclude that there was a "hidden conservatism" in the new judicial federalism.(37) However, he found the extension of rights varied significantly across states, and he identified four state supreme courts (Alaska, California, Florida and Massachusetts) as the most active in extending rights beyond the federal level, granting broader rights in 75% or more of their state constitutional decisions.(38)

   Latzer's study provided a greater understanding of state constitutional policymaking than other works. However, since he focused on the extent to which individual courts simply extended rights, we do not know the extent to which state court extension of rights actually varies across issue areas. For instance, some have speculated that state supreme courts may be less likely to extend rights in criminal cases than non-criminal cases, in part because of the presence of organized groups of prosecutors and police who push for tougher criminal standards.(39) If that is correct, Latzer's "hidden conservatism" could be limited to criminal justice issues.

   Other quantitative studies focusing on the extension of rights have relied, in whole or in part, on Latzer's data on criminal justice decision-making.(40) For example, I have investigated changes in the levels of rights extension in criminal justice issues over time, finding the annual proportion of decisions extending rights has varied significantly over the years of the new judicial federalism.(41) Specifically, during the early years, while the number of state-based decisions was relatively low, over one-half of these decisions extended rights.(42) Although the 1980s saw a dramatic increase in the number of state constitutional decisions, only about one-quarter of them extended rights, while the early 1990s witnessed a decrease in state-based decisions, but a slight increase in the rate at which these...