The silver anniversary of new judicial federalism.

• Author: Gormley, Ken
• Position: Perspectives: Federal Jurisprudence, State Autonomy

For those of us who have been writing and teaching about state constitutional law for several decades, it hardly seems possible that we have been at this endeavor so long. Nor does it seem possible that Justice Brennan's seminal article, State Constitutions and the Protection of Individual Rights (1)--which advocated an increased emphasis upon state constitutional jurisprudence in order to safeguard individual rights and liberties in the United States--has now celebrated its 25th anniversary.

Looking back upon the gestation period of New Judicial Federalism in America, one is struck by the fact that state constitutional law has now reached a certain level of maturity. Early commentators criticized renegade decisions of state courts relying upon their own independent constitutional provisions as illegitimate efforts to circumvent the presumptively correct pronouncements of the U.S. Supreme Court. (2) Professor James A. Gardner, a thoughtful scholar who has raised criticisms concerning "New [Judicial] Federalism," wrote in 1992 that state constitutional law was "a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements." (3) Yet the body of state constitutional jurisprudence has continued to grow at a rapid rate, producing an increasingly impressive array of cases emanating from all fifty states. (4) Indeed, many of these state decisions have guided the evolution of federal constitutional law with respect to major societal issues. (5)

As a young law professor first gathering materials for a course in state constitutional law in the early 1980s--just as New Judicial Federalism was lifting off the ground--I had the unexpected pleasure of getting to know Justice Brennan, then nearing the end of his career on the Supreme Court. Because the confraternity of those professors and jurists interested in this relatively obscure topic was rather small, I found myself visiting Justice Brennan at his Chambers periodically for informal chats. We would talk about new, interesting cases being handed down by state supreme courts around the country and about the long-term prognosis for state constitutional jurisprudence. I was dubious that this new scholarly avocation would sustain itself long; many colleagues warned me that teaching state constitutional law was a passing fad. But Justice Brennan was far more optimistic. He predicted that I would be in the classroom teaching new cases in this area for years.

During one of our informal conversations, I steered Justice Brennan towards the subject of the U.S. Supreme Court's decision in Michigan v. Long, (6) which had recently revamped the adequate and independent state grounds doctrine. Long made it easier for the Court to review--and thus to overturn--decisions of the highest state courts if those decisions straddled the line between relying upon state and federal constitutional precedent. What did Justice Brennan think of Long? Would it not stunt the growth of New Judicial Federalism by making it more difficult for state jurists to rely upon their independent state constitutions? Would it not make it dramatically easier for U.S. Supreme Court Justices to intervene if they disliked a particular result reached by a state court if that court had departed from federal precedent? In my seminars on the subject, I lectured students that Michigan v. Long posed a danger to the long-term health of state constitutional jurisprudence. I was anxious to hear validation of this theory from the horse's mouth.

I recall being startled when Justice Brennan settled back in his chair and ruminated:

I think Long will be a good decision for state constitutional law. It keeps us from wasting time on cases that we have no business deciding. If a state supreme court wants to decide a case based on its own constitution, it just has to say so in plain language, and there won't be any misunderstanding. (7) I was depressed the entire trip back to Pittsburgh from the U.S. Supreme Court. I had been lecturing students so stridently that Long would prove to be a disaster for the future of state constitutionalism in the United States. Now, the man who had authored the critical work on the subject was telling me that this decision was a great milestone. Where had I gone wrong as an academic?

I trudged to work the next day to re-read the Long decision in the privacy of my office. When I reached the end of the opinion, I discovered that Justice Brennan had dissented in the case. (8)

So we live, learn, and make the best with the cards that are dealt. In moments of nostalgic reflection, when I think back upon my conversations with Justice Brennan, I often slip into a game of what-if. What if Michigan v. Long had never been decided? Would state constitutional law have flourished more expansively, or would it have evolved in such an undisciplined fashion that it would have fizzled out? Was Michigan v. Long, in retrospect, positive or disruptive for state constitutionalism and for the already-tenuous relationship between state and federal courts? Two decades later, I have concluded that the answer is: Some of both.

Certainly, the direst predictions about Long have not come to pass. Justice Stevens, the most ardent critic of Long, argued from the start that the plain statement rule would leave wreckage in its wake. He predicted that it would disrupt the harmony between federal and state courts by placing an unfair burden on state jurists to declare that they were relying upon an adequate and independent state ground when a hundred years of U.S. Supreme Court practice had been to the contrary. Where federal and state citations were intermingled, the Court was, in effect, presuming that the state had failed to meet its burden, (9) but the opposite had been the norm since Murdock v. City of Memphis was decided in 1874. (10) More specifically, Justice Stevens warned that the Long approach would indicate disrespect for state courts, thus dealing a blow to federal/state comity. It would also lead to advisory opinions, and it would encourage the wasting of scarce federal judicial resources. (11) In later cases, Justice Stevens--at times joined by Justice Ginsburg--repeated this harsh view of Long, suggesting that the Court "should be concerned by ... [that decision's] inevitable intrusion upon the prerogatives of state courts that can only provide a potential source of friction and thereby threaten to undermine the respect on which we must...