Horizontal federalism in the new judicial federalism: a preliminary look at citations.

• Author: Cauthen, James N.G.
• Position: Perspectives: Federal Jurisprudence, State Autonomy

INTRODUCTION

Oftentimes a party will argue before a state supreme court (1) that the court should undertake an independent analysis of its state constitution and recognize broader civil liberties protections than provided under the analogous provision(s) of the Federal Constitution. The party may support its argument with decisions of other state supreme courts expanding rights under their state constitutions. In opposition, the court may be presented with decisions of still other state courts interpreting their state constitutions consistent with United States Supreme Court interpretation of the Federal Constitution. While there are other sources of authority to which the court may turn to resolve state constitutional questions, including its own previous decisions, state constitutional language, and state constitutional history, (2) the court may ultimately look to out-of-state decisions for guidance. (3)

This is an example of what Professor Alan Tarr identifies as state court interpretation of state constitutions within a "universe of constitutions." (4) Although the United States Supreme Court generally has chosen not to look to state court interpretation of state provisions when interpreting the Federal Constitution, state supreme courts oftentimes have looked within this pool of cases when interpreting their constitutions. (5) Indeed, New Jersey Supreme Court Justice Stewart G. Pollock urged state courts in a 1985 article to engage in this "horizontal federalism" and communicate decisions affecting fundamental rights for other state courts to consider when interpreting their state protections. (6)

The body of scholarship--much of it generated by political scientists--seeking to explain why a state supreme court chooses to expand rights under the state constitution has not, to date, addressed the influence of decisions rendered by other state supreme courts. While scholars cannot read the minds of the justices to determine how sister-state pronouncements may have impacted the resolution of their state constitutional issues, the judicial opinions generated in these cases do serve as written accounts of their decisions, and within these opinions, justices will usually include citations to other cases both from the same court and, oftentimes, from other courts. (7) These citations may provide some insight into the extent to which state courts communicate with each other over the meaning of state constitutional provisions and engage in horizontal federalism.

This study investigates the level of horizontal federalism in state civil liberties interpretation through a citation analysis of state constitutional decisions. Focusing solely on the portions of the majority opinions interpreting the scope of the protections afforded under the state constitutions, support for horizontal federalism is found, as the courts included in the study cited decisions from other state courts in over one-third of their decisions. (8) The level of citation to other state court decisions was higher in those decisions in which the state court afforded citizens broader rights under the state constitution than provided under analogous provisions of the Federal Constitution. These results provide initial empirical support for horizontal federalism, but, as more fully discussed below, it may be that future levels of out-of-state citation will fall, as states increasingly build up their own precedent from which state constitutional decisions may be constructed.

Part I of this article briefly addresses how existing empirical studies of decision-making under the new judicial federalism have failed to incorporate the influence of horizontal federalism, and how a citation pattern study can provide some preliminary evidence of inter-court communication to be considered in future investigations. (9) Part II of this article sets out the methodology used to collect and analyze the data to study citation patterns, (10) and the results are presented in Part III. (11) Some conclusions are drawn in Part IV, including suggestions for future research in this area. (12)

1. EXISTING EMPIRICAL STUDIES EXPLAINING THE EXPANSION OF RIGHTS AND HORIZONTAL FEDERALISM

   Since the early 1970s, state courts have increasingly relied on their state constitutions to protect individual rights, a movement that has been referred to as the "new judicial federalism." (13) As the U.S. Supreme Court has recognized, when a state court interprets its constitution, the Supreme Court's decisions on federal civil liberties protections do not preclude a state from providing additional protections under its own state constitution. (14) Thus, when addressing a civil liberties issue under its state constitution in an area in which the U.S. Supreme Court has interpreted the Federal Constitution, a state supreme court oftentimes is presented with the following issue: Should we interpret our state constitution consistent with the U.S. Supreme Court's interpretation of the federal analogue, or should we afford our citizens more expansive protections?

   In his work on judicial federalism in the criminal justice area, Barry Latzer found that between 1970-1989, when state supreme courts interpreted their state constitutions in six broad criminal justice issue areas, the state courts rejected Supreme Court reasoning and extended rights in approximately one-third of their decisions. (15) Similar conclusions were reached in a study of a broader scope of decisions in twenty-five states between 1970 and 1994, also finding that the proportion of state constitutional decisions extending rights varied significantly across issue areas. (16)

   There have been a number of studies by social scientists interested in judicial behavior seeking to explain why a state supreme court interpreting the scope of state civil liberties protections may choose to expand state based rights beyond federal levels. These investigations have identified state and judicial ideology, institutional features of the court, and state constitutional language as factors affecting the decision to expand rights. (17) Although it is established from the state supreme courts' own opinions in these cases that they often seek guidance using other state courts' decisions, these explanatory studies have not yet addressed the role horizontal federalism plays in state constitutional interpretation. This study takes an initial step in that direction through a citation analysis of state supreme court decisions interpreting state civil liberties protections.

   A citation study of state constitutional decisions across numerous states may provide some additional insight into the strength of horizontal federalism as empirical evidence of intercourt communication and of the source of the court's legal reasoning. One criticism of citation studies is that a court's use of citation may only be an after-the-fact rationalization of a decision already made, although even in these cases, a citation still identifies what the court believes to be a legitimate argument to reach its decision. (18) It is also important to remember that courts may cite to a decision of...