State courts adopting federal constitutional doctrine: case-by-case adoptionism or prospective lockstepping?

• Jurisdiction: United States
• Author: Williams, Robert F.
• Date: 01 February 2005

Some states appear to be adopting, apparently in perpetuity, all existing or future United States Supreme Court interpretations of a federal constitutional provision as the governing interpretation of the parallel state constitutional provision.

Today's courts are qualifying these precedents; they explain that past adherence to federal decisional law does not signify that the state court is bound to construe the state constitution in accordance with the federal interpretation of the federal constitution for all times and under every circumstance.

--Honorable Shirley S. Abrahamson

Supreme Court of Wisconsin (1)

INTRODUCTION

Since the beginning of the New Judicial Federalism, (2) there has been heated debate over state court interpretation of state constitutional rights provisions that are identical or similar to federal constitutional provisions that have already been interpreted in a certain way by the United States Supreme Court. (3) The "shadow" (4) or "glare" (5) of these United States Supreme Court decisions, both as to their substantive outcome and their techniques of constitutional interpretation, seem to raise legitimacy questions about state courts reaching more protective, often more liberal, results when they interpret their own state constitutions. (6) These questions arise from America's system of dual enforcement of constitutional norms.

Much legal literature and many state judicial opinions have addressed such questions, often presenting arguments as to why it is, in fact, legitimate for state courts to "diverge" from the United States Supreme Court's interpretation of similar or identical provisions in the Federal Constitution. The literature has even differentiated between such provisions, contending that where the United States Supreme Court "underenforce[s]" certain federal constitutional norms, such as the Equal Protection Clause, (7) or where "strategic concerns" in enforcing such norms differ between the state and federal systems, state courts are even more justified in diverging from the Supreme Court's interpretation of the Federal Constitution. (8) State courts might even agree with the United States Supreme Court on the meaning--both textually and historically--of identical or similar federal and state constitutional provisions, but proceed to apply them differently under particular circumstances. (9) This is a discussion that continues to become more sophisticated, both in the courts and in the academic literature. (10)

1. STATE COURT ADOPTION OF FEDERAL CONSTITUTIONAL DOCTRINE: THE FORMS OF LOCKSTEPPING

   Much less attention has been devoted, however, to the circumstances where state courts decide to follow, rather than diverge from, federal constitutional doctrine. This is, in fact, the clear majority of cases, (11) and represents an important feature of the dual enforcement of constitutional norms. Michael Solimine and James Walker have argued that this prevalence of lockstepping supports the view that there is "parity" between federal and state courts as effective enforcers of federal constitutional norms. (12) Alan Tarr has noted that, by contrast to the great question in federal constitutional law about the legitimacy of judicial review itself, the central question in state constitutional law concerns the legitimacy of state constitutional rulings that diverge from, or "go[] 'beyond,'" federal constitutional standards. (13) Perhaps the time has come to raise the issue of legitimacy, as well as other questions, about state courts adopting federal constitutional standards. (14)

   What are the implications for state constitutional law when state courts decide to interpret their state constitutional provisions in the same manner--or to reach the same outcome--as the United States Supreme Court under a similar or identical clause of the Federal Constitution? How does this "doctrinal convergence" actually work? (15) Upon closer examination, there is a range of different approaches, each with different implications.

   Until recently, I had focused my attention almost exclusively on the former category of state cases (divergence) and not given much attention to the latter category of states adopting federal constitutional doctrine (convergence). In taking a careful look at Ohio state court decisions in connection with the bicentennial of that state's first constitution, (16) it finally dawned on me that state cases following federal constitutional doctrine are in fact much more nuanced and varied than I had thought. Accordingly, they have a wide variety of implications--for both bench and bar--for the future development of state constitutional law. I should have realized this much earlier based on the very insightful observations of then-Justice Shirley Abrahamson quoted at the beginning of this Article. (17) In 1985 she noted that state constitutional law cases could "be classified into ... two distinguishable groups." (18)

   On one side stand the cases intentionally adopting federal decisional law as interpretive of their own constitutions. Some state courts merely say that the texts of the two constitutions are substantially similar and should be similarly construed. Other state courts analyze the state constitution, or the federal doctrine, or both, and explain the reasons for adopting federal decisional law. (19) She concluded that:

   [S]tate cases adopting federal law as state constitutional law will have to be studied carefully to analyze the reasons for and manner of adopting federal law, and to determine whether state courts change their interpretations of the state constitutions as United States Supreme Court and sister state court decisions take new paths. (20) Her suggestion that legal scholars analyze the state constitutional cases adopting federal doctrine has gone unheeded, certainly in my work. I have now paid attention to decisions adopting federal constitutional doctrine for several years, albeit without going back and researching such cases systematically in the past.

   1. Judicial Approaches to Adopting Federal Constitutional Doctrine as State Constitutional Law

   Many of us have denigrated state constitutional law cases adopting federal constitutional interpretations as a form of kneejerk lockstepping. (21) Justice Hans Linde of Oregon described state courts' uncritical adoption of federal constitutional doctrine in interpreting state constitutional provisions as the "non sequitur that the United States Supreme Court's decisions under such a text not only deserve respect but presumptively fix its correct meaning also in state constitutions." (22) In addition, Justice William J. Brennan, Jr., noted that "decisions of the Court are not, and should not be, dispositive of questions regarding rights guaranteed by counterpart provisions of state law." (23) Finally, state court justices have criticized their courts when they "parrot" (24) or "mimick[]" (25) the United States Supreme Court approach.

   Of course, Justices Linde and Brennan are correct. The Supreme Court cannot "fix" (26) the meaning of a state constitution, nor can its decisions be "dispositive" (27) of state constitutional issues. This does not mean, however, that we should ignore the instances where state courts choose to follow federal doctrine. The Ohio cases illustrate the two extreme points on what is actually a continuum of approaches to adopting federal constitutional doctrine as state constitutional law. These cases, as well as those in many other states, reveal the range of different methods by which state courts may choose to follow Supreme Court interpretations of the federal Constitution. The cases also suggest differing implications of each of these techniques for the bench and bar.

   1. Unreflective Adoptionism

      The first approach may be referred to in Barry Latzer's terms: "unreflective adoptionism." (28) He stated that "[i]t is illogical, the argument runs, to retract state constitutional rights simply because the Supreme Court has not found those rights in the U.S. Constitution. This argument is quite persuasive if the premise of unreflective adoptionism is correct." (29) He was referring to state court decisions simply applying federal analysis to a state clause without acknowledging the possibility of a different outcome, or considering arguments in favor of such a different, or more protective, outcome. This might be an accurate description of the pre-1993 stance adopted by the Ohio Supreme Court. Throughout this period, the court virtually never recognized the independent force of the Ohio Constitution, opting instead for "kneejerk lockstepping" or "instant agreement" with federal doctrine. (30) Many other state courts have followed this approach as well.

   2. Reflective Adoption

      The next approach, "reflective adoption," describes a state court decision acknowledging the possibility of different state and federal outcomes, considering the arguments in the specific case and, on balance, deciding to apply federal analysis to the state provision. (31) Under this approach, the state courts conform their decisions to existing federal constitutional precedents. (32) As Dr. Latzer noted:

      [I]f the state courts are not merely presuming that state and federal law are alike, but are coming to this conclusion after independent evaluation of the meaning of the state provision, then the critique collapses. There is nothing improper in concluding that the Supreme Court's construction of similar text is sound. Adoptionism is not per se unjustifiable. (33) Professor James A. Gardner has recently made a strong argument favoring the legitimacy of reflective adoption. (34) Gardner argues that states and their constitutions "are part of an interlocking plan...