In November, 2020, Lauren McLane, a professor at the University of Wyoming College of Law, was forwarded a letter from Christopher Hicks, an incarcerated man who’d been sentenced to life without parole for his role in a murder. The letter was part of a petition, prepared by Hicks, laying out “all the pertinent information, charges and reasons” that he deserved consideration for a pardon. The murder, he wrote, had been carried out fifteen years earlier by another man, who entered the victim’s house while Hicks remained in the back seat of a car, intoxicated. Noting that he was a teen-ager at the time, Hicks claimed that he’d been pressured into participating in the crime by a third, older man, who lived in the trailer where Hicks had been residing.
McLane runs a clinic that regularly helps indigent clients in Wyoming file motions to reduce their sentences. Yet, when she finished Hicks’s petition, she said to herself, “This is an absolute lost cause.” In part, she felt this way because of the notorious reputation of Kent Proffit, Sr., the older man who’d orchestrated the murder: Proffit, an alleged child molester, had wanted to prevent the victim, a sixteen-year-old boy, from testifying against him in a sexual-assault trial. Another problem was that Hicks had been nineteen when the crime occurred. In a 2012 Supreme Court case, Miller v. Alabama, the Justices had barred judges from sentencing juveniles to mandatory life without parole, on the ground that doing so violated the Eighth Amendment’s ban on cruel and unusual punishment. Justice Elena Kagan, who wrote the majority opinion, argued that children’s “diminished culpability and heightened capacity for change” required judges to consider their age when determining their punishments. But, as McLane knew, the Miller decision applied only to defendants who were younger than eighteen when they’d committed crimes. Because Hicks had been a little older than this, McLane assumed that no judge would deem his age a mitigating factor.
A few months later, however, she learned about a case that made her reconsider. The case, In re Monschke, came before the Supreme Court of Washington State, which, in a 4–3 decision, ruled that Miller should be extended to two petitioners who’d committed homicides when they were nineteen and twenty years old, respectively. The justices noted the prohibition on “cruel punishment” in Washington’s state constitution, and cited neuroscientific research, presented in court, showing that the brains of young adults were still developing, leaving them susceptible to the same impulsive behavior as juveniles.
One lawyer involved in the Monschke case was Jeffrey Ellis, who taught a seminar on capital punishment that McLane had taken in law school, at Seattle University. She began to wonder whether a similar case might be brought in her home state. McLane recognized the vast differences between the political climates of Washington, which had one of the most liberal supreme courts in the country, and Wyoming, where Donald Trump won nearly seventy per cent of the vote in 2020. But she also knew that Wyoming, like much of the rest of the Mountain West, prided itself on not taking directives from the federal government.
McLane combed through recent Eighth Amendment cases that had come before the Wyoming Supreme Court and spotted evidence of this independent spirit. In a 2014 case, Bear Cloudv. State, the justices noted that the plaintiff, who sought an itemized sentencing hearing for an aggregate punishment he’d been given for a series of crimes committed when he was sixteen, had made “no more than a passing reference to the protections that might be afforded by our state constitution.” They added, “Our state constitution need not necessarily be analyzed by ‘blindly follow[ing] the United States Supreme Court’s interpretation.’”
Wyoming’s constitution, like those of several other states, contains an analogue to the Eighth Amendment that prohibits cruel or unusual punishment—a minor but potentially important textual difference. After weighing these factors, McLane called Christopher Hicks. She mentioned the Monschke decision and said, “I think this is something we can do.”
In 1976, Justice William Brennan delivered a speech at the annual convention of the New Jersey State Bar Association. In the previous two decades, Brennan, who had served on the New Jersey Supreme Court for five years before Dwight Eisenhower appointed him to the U.S. Supreme Court, had written, or joined, dozens of influential opinions that broadened the rights of criminal defendants, women, Black people, and indigent Americans. Many of these decisions invalidated state laws that sanctioned racial discrimination, by augmenting the authority of the federal government. But Brennan, in his speech, endorsed an idea that seemed to move in the opposite direction, making an impassioned case for state courts to issue rulings that pushed beyond protections enshrined in federal law. “State courts cannot rest when they have afforded their citizens the full protections of the federal Constitution,” he said. “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”
As Brennan peered around the ballroom where the conventioneers were gathered, he saw the crowd thinning, and became convinced that his speech was flopping—so much so that he walked offstage before finishing it. But, the following year, his full address was published in the Harvard Law Review, and it became one of the most widely cited law-review articles ever written, inspiring what legal scholars have called “the new judicial federalism”—a movement in which state courts, citing provisions in their own constitutions, issued a flurry of decisions widening the scope of rights. Among them was State v. Novembrino, a 1987 case in which the New Jersey Supreme Court endorsed protections against unreasonable searches and seizures that were more robust than those in federal law, siding with a suspect who had been charged with possession of illegal drugs on the basis of evidence obtained through a nonconsensual search. (The decision rejected the “good-faith exception” endorsed by the Supreme Court, which critics have argued gives the police too much latitude to engage in misconduct.) Although the Constitution’s supremacy clause forbids states from violating federal rights, nothing bars them from amplifying those rights. In the decade after Brennan’s article appeared, state courts handed down more than two hundred such rulings, on issues ranging from free speech to the death penalty—a tenfold increase from the previous ten years.
Brennan’s article had a major impact because of his stature, and because, by the late seventies, the Supreme Court was no longer engaged in the expansion of rights that had unfolded under Chief Justice Earl Warren, who retired in 1969. The subsequent appointment of four Justices who were nominated by Richard Nixon—including Warren Burger, who succeeded Warren as Chief Justice—had left Brennan increasingly isolated and dismayed, a feeling that he didn’t hide in his speech. The Supreme Court was failing to protect rights, he complained, including in cases involving the equal-protection clause—a retreat that “constitutes a clear call to state courts to step into the breach.”
As necessary as such interventions may have seemed to Brennan nearly half a century ago, a growing number of advocates and legal scholars believe that they are far more urgent today. In February, I heard this view expressed repeatedly at a two-day symposium on state constitutions held at New York University School of Law and organized by the Brennan Center for Justice. (The center is named for Brennan himself.) A decade ago, a conference on such a subject likely would have been a modest gathering. This year, the turnout was so heavy that many attendees had to sit outside the main room and watch the proceedings on a simulcast.
“Justice Brennan’s call to action has never been more salient,” Michael Waldman, the president of the Brennan Center, declared in the opening address. If the symposium owed a debt to Brennan, it owed no less of one to Senator Mitch McConnell and to President Trump, who helped to entrench a lopsided 6–3 conservative majority on the Supreme Court. Recent Court rulings—from Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, to Sackett v. Environmental Protection Agency, which weakened the Clean Water Act—have left many progressive analysts convinced that, for at least a generation, trying to expand federal rights will be a hopeless cause. (A notable exception is the rights of gun owners, toward whom the Justices have been solicitous.) State litigation offers far more opportunities, the speakers at the symposium affirmed. Forty-nine states “have stronger protections for voting rights than the U.S. Constitution does,” Waldman noted in his address. State constitutions are also much easier to change: whereas a federal constitutional amendment must be ratified by three-quarters of state legislatures, a process that can take decades, amending the constitutions of most states requires a single referendum. For this reason, pro-choice advocates in numerous states have lately pushed to place amendments legalizing abortion on the ballot. (So far, four states have amended their constitutions to protect abortion rights, and in November there could be referendums on the matter in as many as fourteen states.)
“I’ve only gotten them to make a pact to mate if they’re both still single in fifteen years.” Cartoon by Joseph Dottino and Alex Pearson Link copied
In Dobbs, the Supreme Court left it to states to fashion their own laws and policies on abortion. Fourteen states have bans in effect which criminalize the procedure in nearly all circ*mstances. But the high courts of eleven others have recognized that their constitutions protect abortion rights independently from the federal Constitution. Some states have also framed abortion access in novel ways—for example, as a matter of equality rather than privacy, an argument that many feminist scholars have long considered superior. Shortly before the N.Y.U. symposium, the Supreme Court of Pennsylvania ruled that a state ban on Medicaid coverage for abortion was “presumptively unconstitutional” because it violated both the Equal Rights Amendment, which Pennsylvania has ratified, and the equal-protection clause in the state’s constitution. At the symposium, Mary Ziegler, a legal historian, speculated that, in fifty years, when scholars write the story of Dobbs’s reversal, “many of the early chapters are going to be about what occurs in state courts.”
One criticism of the call for state courts to play a more prominent role in protecting rights is that the underlying motive is ideological; in Brennan’s case, he was openly trying to counter the Burger Court’s rightward shift. At the N.Y.U. symposium, Goodwin Liu, a justice of the Supreme Court of California and a strong proponent of judicial federalism, said that such concerns were likely why many of his peers “look a little bit askance at this project,” dismissing it as an attempt to preserve only liberal rights.
But not everyone who is sympathetic to judicial federalism leans left. At the symposium, Clint Bolick, a self-described “textualist” who served in the Reagan Administration and is now a justice of the Arizona Supreme Court, said, of state jurists, “U.S. Supreme Court Justices do not take oaths to the state constitution, but we do.” In Bolick’s view, state courts that reflexively follow the Supreme Court are shirking their duty to protect the rights enshrined in their own constitutions.
The best-known recent book on state-constitutional law is “51 Imperfect Solutions,” by Jeffrey S. Sutton, a judge on the U.S. Court of Appeals for the Sixth Circuit and a former clerk for Justice Antonin Scalia. Sutton writes, “For too long, we have lived in a top-down constitutional world, in which the U.S. Supreme Court announces a ruling, and the state supreme courts move in lockstep in construing the counterpart guarantees of their own constitutions.” In a diverse democracy, Sutton argues, it is preferable for state courts to exercise independence, spurring the kind of experimentation that America’s federalist system was designed to cultivate. Because state courts preside over smaller jurisdictions, he notes, they can craft remedies without imposing a one-size-fits-all rule on the entire country. One example that Sutton cites is San Antonio Independent School District v. Rodriguez, a 1973 case in which the Supreme Court ruled that inequalities in Texas’s public-education system did not violate the Constitution. (The lawsuit was brought by a parents’ association in an underfunded school district.) In response, numerous lawsuits were filed in state courts, many of them invoking the right to a public education—something that all state constitutions explicitly affirm. In 1989, the Texas Supreme Court ordered officials to create a more equitable system, citing the state constitution’s guarantee that the “general diffusion of knowledge” will be fostered. By 2004, the school district in the Rodriguez case was spending more per pupil than Alamo Heights, an affluent neighborhood that the plaintiffs had highlighted in their original lawsuit.
