New Challenges to Judicial Federalism

Document Type

Article

Publication Date

6-30-2024

Abstract

The theory of judicial federalism holds that state constitutions are jurisprudentially independent from the U.S. Constitution, and that state supreme courts consequently may, and often should, interpret state constitutions differently from how the U.S. Supreme Court interprets the federal Constitution. As the U.S. Supreme Court increasingly turns back to the states important decisions of constitutional policy, such as the scope of reproductive rights or the nature and content of limitations on partisan gerrymandering, state constitutional law looms ever larger as a potential ground for resolution of these issues.

The conditions for a revival of judicial federalism today, however, are far less propitious than those that prevailed during the theory’s initial efflorescence during the 1970s through the early 1990s. First, federalism is getting swamped by partisan politics. American politics are quickly becoming both nationalized and deeply polarized, and territory increasingly aligns more with partisanship than with distinctively local values and policy preferences. Second, state judiciaries are increasingly becoming politicized. They are now routinely targeted for capture by national partisan organizations. Judicial elections are often funded by immense influxes of out-of-state money from donors whose goals align with national partisan agendas. Both of these developments greatly diminish the likelihood that state constitutional jurisprudence might remain independent not only from its federal counterpart but, more alarmingly for the rule of law, from the campaign platforms of the major national political parties.

Finally, these challenges have only been exacerbated by an emerging ethos on the U.S. Supreme Court characterized not only by a seeming responsiveness to rank partisanship, but by an accompanying attitude of judicial impunity. This ethos is manifested in inattention to traditional judicial ethics of impartiality; a casual and highly selective approach to precedent; and managerial practices of insincerity and opacity. To the extent that state judges choose to model their own behavior on that of the Supreme Court, these developments can only reduce the likelihood that jurisprudential independence will be cashed out as impartial, truly independent state constitutional decision making. It is far more likely to encourage state judges to yield to impulses of partisanship and political self-interest.

Publication Title

Kentucky Law Journal

First Page

703

Last Page

727

Comments

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