STATE COURTS IN A FEDERAL SYSTEM.

• Author: Larsen, Joan L.

CONTENTS INTRODUCTION PART I PART II CONCLUSION INTRODUCTION

This lecture was established to honor the memory of Judge Sumner Canary. (1) Judge Canary spent a good deal of his time in the state court system. He was also United States Attorney, (2) so he spent some time in the federal system. I have something in common with Judge Canary, in that I too have served in both systems. I currently serve on the United States Court of Appeals for the Sixth Circuit, but before that I had the honor of being a Justice of the Michigan Supreme Court. That is what I want to talk to you about today.

Recent years have witnessed a renewed interest in state courts and their relationship to their federal counterparts. For example, my colleague on the Sixth Circuit Court of Appeals, Judge Jeff Sutton, has recently published an excellent book on state constitutional law entitled, 51 Imperfect Solutions: States and the Making of American Constitutional Law. (3) His book, which I will discuss in more detail later, argues that state courts play a critical, though underappreciated, role in our national judicial system. I just learned today that he will be here later this academic year to discuss the book. It is an excellent book. But I will also offer a bit of a dissent in advance, so when Judge Sutton comes here, you can ask him what he thinks about my partial dissent.

With those things in mind, I would like to offer some of my perspectives on the relationship between state and federal courts. I thought I would first tell you a little bit about my transition from the state bench to the federal bench and some things I noticed right away. Next, I would like to comment on the importance of state courts in our federal system and the important ways in which they can operate to improve justice in America. I will also offer a few thoughts about their limits. Lastly, I will wrap up with a few thoughts about how my experience as a state court judge has influenced the way I do my current job as a federal appellate judge.

PART I

First, let me share a bit about my transition from state to federal court. I am often asked: what are the differences between serving as a Justice on a state's highest court and serving in the federal system as a mere intermediate appellate court judge? Before I begin, I should say that, of course, I can only speak of my own experience. Someone that serves on a different court, the Ohio Supreme Court, or any other, might have a different view. But from my experience, I noticed three things right away.

The first thing I noticed is that it is an election year, and I am not on the ballot. In Michigan, as in Ohio, we elect our judges, although the Governor holds the power to appoint judges to fill vacancies that arise between elections. (4) That was my situation. I was appointed to the Michigan Supreme Court in the fall of 2015 to fill a vacancy. Under the Michigan Constitution, a judge appointed to fill a vacancy must stand in the next state-wide general election. (5) For me, that election was in the fall of (2016) and I am delighted to say that I won my first--and last--election for public office.

So for starters, there are often differences in how one gets a seat on a state court as opposed to a federal court. Almost half the states use some form of election to select their high court justices. (6) Obviously, the federal selection process, consisting of nomination and Senate confirmation, is quite different. I cannot comment on current controversies, so I will not dwell long on this subject. I will pause only long enough to note two things. First, there must be some form of democratic input in the process of selecting our least majoritarian branch of government. And second, there will always be disagreement over what form that democratic input should take--whether that be election or appointment, and within those broad categories, just precisely what the details ought to be (contested elections, retention elections, confirmation processes, or the like). There is no perfect solution to the problem of selecting who will sit in judgment of our laws, our leaders, and ourselves. We can only ask that the process be transparent and that the process be fair.

Having been appointed and confirmed through the federal selection system, one of the first things I noticed when I arrived at the federal court of appeals is that my colleagues are really far away, and they change all the time. The judges of the Sixth Circuit, which comprises the states of Tennessee, Kentucky, Ohio, and Michigan, are geographically dispersed. We have our chambers in our home states (and often in different cities within those states) and come together only to hear oral argument in Cincinnati. And when we go to Cincinnati, we sit in rotating, randomly-selected three-judge panels.

The first of these features (geographic dispersion) is not a feature of all federal appellate courts--the D.C. and Federal Circuits are notable exceptions--but it is a feature of most of them. And it affects the way the court operates more than I had anticipated. Before I came to the Sixth Circuit, I had some form of experience inside three courts: I had been a law clerk on the D.C. Circuit; a law clerk on the United States Supreme Court; and then a Justice of the Michigan Supreme Court. And what all those courts have in common is proximity. The judges and the law clerks are regularly in one building.

Some say that familiarity breeds contempt, but that was not my experience. I found it incredibly useful as a law clerk to be able to walk down the hall and puzzle through a tricky legal question with clerks from other chambers who were working on the same case. Our work was hard, and we were fresh out of law school. Having the benefit of those different perspectives helped me help my judge. And that was made easier because we were physically together. As a justice of the Michigan Supreme Court, I found this equally true. My work was made better by the chance to discuss hard problems with my colleagues face-to-face and one-on-one.

Before I arrived at the Sixth Circuit, I was concerned that geographical dispersion might hamper the judges' ability to have meaningful discussions about legal topics. But I have been pleasantly surprised by the willingness of my colleagues to discuss cases. Although I am new to the court, my colleagues have been very welcoming, and we all seem to get along quite well. But our distance from one another does present challenges. It means that we have to make more of an effort to keep open those lines of communication. We cannot discuss a case in the hallway or over coffee or lunch because we are not together. So our communication often must take a more formal tone. We exchange memos, write emails, or pick up the phone. But there is a little barrier when you cannot just walk down the hall. You have to think more precisely about what you are going to say. I cannot decide if that is a benefit or a detriment. Obviously, it is always good to think carefully about what you are going to say next. And having to pick up the phone, write an email, or send a memo produces that result. But on the other hand, those casual one-on-one interactions often gave me some of my best ideas. There is not much we can do about geographic dispersion. It is a feature of appellate courts that cross state lines, and it has its costs. But it also has the benefit of bringing together a group of judges with diverse backgrounds, reflecting the legal communities of the various states that make up our circuit.

A different, but related, way in which the federal courts of appeal differ from their state counterparts is that the panels, by design, are constantly changing. When we go to Cincinnati to hear arguments, we typically hear arguments over four days. And in the course of those four days, we will sit on two different panels. That means that in any given court week, I will sit with four different judges; and the next month it will be a different four; and so on. The process of drawing judges is random, so sometimes there are repeat players, which means that it could take many months, or even years, before I will have served on a panel--even once--with each of my judicial colleagues.

By contrast, supreme courts--state and federal--always sit en banc. And what that means, as a judge, is that you quickly get to know your colleagues, both as jurists and as people. That facilitates the exchange of ideas, not only in the informal way occasioned by proximity that I mentioned before, but also in the sense that when you sit together repeatedly, you learn what to expect. Different judges have different styles for argument and opinion writing. Some judges, for example, like to ask the first question, and others the last. Figuring out how to insert oneself into the argument and to adapt one's own style to facilitate conversation is easier in a court that convenes with the same five, seven, or nine actors each time.

The last thing that I noticed instantly upon arriving at...