The progress of judicial federalism, the independent interpretation of state constitutions, has generally been limited. This article explores how lawyers have contributed to the development of state constitutional rights law in the search and seizure context. Through a comparative study of lawyers in New York, Ohio, Oregon, and Washington, I argue that the ideational support provided by lawyers in the form of constitutional arguments has varied widely across the states in response to the legal signals sent by their high courts and the United States Supreme Court. In essence, the argument is that lawyers need law and in the area of judicial federalism have largely waited for their state courts to provide some measure of leadership.
Judicial federalism--the interpretation of state constitutional texts independently of federal doctrine--has been a source of commentary and action since the 1970s. Then Professor Hans Linde argued that judicial federalism was a requirement of standard rules of adjudication and legal argumentation. Linde argued that "[t]he logic of constitutional law demands that nonconstitutional issues be disposed of first, state constitutional issues second, and federal constitutional issues last." (1) As federal jurisdiction depends upon the state depriving a person of some interest, and given that courts are a constitutive element of the state, a state court decision that some action violated state law eliminates the need for federal review: "By the action of the state court under the state constitution, the state has accorded the claimant the due process and equal protection commanded by the fourteenth amendment, not denied it." (2) State and federal constitutional claims, therefore, "are not cumulative but alternative," (3) and "[c]laims raised under the state constitution should always be dealt with and disposed of before reaching a fourteenth amendment claim of deprivation of due process or equal protection." (4) This primacy approach "obliges counsel and court to give independent professional attention to the text, history, and function of state constitutional provisions," rather than simply borrow concepts and doctrines wholesale from federal doctrine. (5)
While Linde's call came in 1970, it took further federal developments to put judicial federalism forward as a serious jurisprudential approach because judicial federalism is inextricably linked to developments in federal constitutional politics. Political struggles to influence the U.S. Supreme Court led to the push for increased state constitutional activism. (6) The Warren Court represented a dramatic expansion of judicial power in the service of liberal policy goals actively supported by Presidents Kennedy and Johnson. (7) The Warren Court expanded protections in a diverse set of areas such as criminal procedure, free speech, and religious freedom through the application of nearly the entire Bill of Rights to the states. (8) This liberal activism in turn elicited a conservative backlash; Richard Nixon's 1968 campaign focused heavily on a criticism of the Warren Court as being too friendly to criminals in particular and promising to appoint more conservative justices to correct this tendency. (9) While a common view of Nixon's Court was one of a failed counterrevolution, (10) this ignores the limited goals that Nixon expressed. On the issues that Nixon cared the most about, criminal rights and desegregation, the Court delivered much of what he hoped for, successes that were built upon by Reagan's more expansive attack on the liberal legacy. (11) The Court never completely delivered on the goal of conservative activists to reverse the Warren Court's legacy, but the sustained opposition led to a Court that maintained some liberal rights while severely constraining others and then turned the Court's activist power to the protection of conservative rights claims. (12) This rights retrenchment, however, was open to contestation from below because the rules of American federalism allow for divergent constitutional rights doctrines through state constitutions. Long standing federal doctrine recognized that the U.S. Supreme Court lacked constitutional authority to review determinations of independent state law. (13)
The increasingly conservative trend of federal rights jurisprudence in the 1970s and 1980s led more advocates to push for a turn to state law as a way to sidestep or evade federal rights retrenchment. Justice William Brennan made the highest profile call for judicial federalism (14) by instructing liberal lawyers dismayed over the increasing conservatism of his own Court to remember federalism: "Federalism need not be a mean-spirited doctrine that serves only to limit the scope of human liberty"; instead, "one of the strengths of our federal system is that it provides a double source of protection for the rights of our citizens." (15) He admonished both lawyers and state courts that federal law is not dispositive on the meaning of state constitutional provisions and should be followed "only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees." (16) While Brennan's argument disclaimed any preference for particular results, this was a transparent denial when read against his jurisprudence, which did not show great support for federalism; his message was that "state courts should vindicate personal liberties along the lines undertaken by the Warren Court by reading their state constitutions expansively and should justify their actions by referring to the 'neutral' principle of federalism." (17) Brennan's theory then amounts to an instrumental one: state courts should utilize their constitutions to evade federal retrenchment.
All this attention to judicial federalism seemed to augur a revolution in state constitutional law, with courts embracing their state constitutional rights provisions as sources of true, independent constitutional law. Studies of case outcomes and legal reasoning, however, demonstrate that federal law generally remained dominant in rights disputes. A study of six state high courts in 1975 found that approximately 19% of all constitutional issues, not simply limited to rights issues, were resolved on state law grounds. (18) A broader study of all equal protection cases from all state supreme courts between 1975 and 1984 found that equal protection was particularly dominated by federal law, with only 6.7% relying on state law alone to reach the court's decision. (19) A study of self-incrimination cases from all state high courts from 1981 to 1986 found that 22% rested solely on state law but there was significant variation between states, with fourteen states never relying on state law and eight states relying on state law in at least half of the cases. (20) Emmert and Traut examined all instances of facial challenges to state statutes between 1981 and 1985, finding that state-only grounds were relatively rare for invalidations. (21) More impressionistic studies of small-issue areas or only a few courts have similarly found that while judicial federalism may have increased in frequency in the 1980s, the "area continue[d] to be largely reactive." (22) Another study of criminal procedure and First Amendment rights-parallels found that in a third of cases the state court adopted a broader rule; two of the three most common areas of expansion were in search and seizure and free exercise claims, both responding to federal retrenchment, but jury trial claims were similarly frequent and cannot be explained solely with reference to federal law. (23) The picture of case outcomes demonstrates that judicial federalism is the exception rather than the rule, but that judicial federalism varies by issue area and, in some studies at least, the state court studied. Examination of the rationale of opinions similarly demonstrates a tendency to converge federal and state law.
Barry Latzer examined all instances of state constitutional interpretation in criminal procedure cases from the late-1960s to 1989 to gauge the degree of rejection or adoption of federal rights doctrines. (24) Contrary to the view by some that judicial federalism "is of a wholly liberal legal movement" regularly expanding criminal procedural rights, (25) two-thirds of the cases adopted the reasoning of the U.S. Supreme Court. (26) There was considerable variation in the one-third of cases that rejected the federal rule, with the most common area being search and seizure because that is the area of strongest federal retrenchment; where the Burger Court's "Fourth Amendment jurisprudence had clearly been given a pro-police cast." (27) Only four state high courts (Alaska, California, Florida, and Massachusetts) regularly expanded state constitutional protections. (28) Cauthen utilized Latzer's case samples for twenty five state high courts and extended the data through 1994, finding that while the aggregate degree of expansion was consistent with Latzer's original finding, there was substantial variation over time. (29) In the 1970s, the degree of expansionism was actually quite high but was concentrated in a handful of prominent decisions from only a few early adopters of active judicial federalism. (30) In the 1980s, as state constitutional issues spread to more states, the rate of expansive decisions dropped off. (31) But in the 1990s, an increasing trend of expansion emerged. (32)
In a prominent critique of judicial federalism, Gardner examined all constitutional cases decided by seven state high courts in 1990. (33) By looking at all constitutional disputes, Gardner's analysis avoided a narrow focus on areas where judicial federalism was more likely than not and illuminated the constitutional discourse used by state supreme courts. Rather than being a source of truly independent law as pictured by some theorists...