Ed Whelan and Gary Marx have done an excellent job of summarizing the considerable progress that judicial conservatives made at the state court level during this election cycle. So, as a person who had spent most of her career inside the Beltway might ask, why should we care?
The obvious answer is that over 95 percent of the litigation that occurs in this country occurs in state courts, and those courts are still the primary venue for disputes in a variety of important areas of the law. For instance, the Rose Bird–led California Supreme Court went out of its way to invalidate the death penalty by simply refusing to uphold death sentences, the Illinois Supreme Court recently invalidated the state’s key tort reform law, and the Iowa Supreme Court imposed gay marriage on the state. The election of jurists who are committed to the text and original meaning of the Constitution can have an immediate impact in closely divided cases.
What is less obvious is whether the aggressive focus on state courts by a relatively small number of organizations has had a more profound impact on the judicial philosophy and methodology state courts employ to decide cases. As anyone who watches the U.S. Supreme Court knows, the justices of the U.S. Supreme Court are deeply divided over the methods and tools for statutory and constitutional interpretation. What about state supreme courts?
Columbia law professor Abbe Gluck recently published a paper in the Yale Law Journal that appears to be the first close study of this question. Professor Gluck demonstrates that, in several states where judicial conservatives have focused their efforts, the high courts appear to have settled on a particular approach to interpretation.
According to Gluck:
Like Oregon’s and Texas’s regimes, the Wisconsin framework is a text-centric hierarchy that prohibits consultation of extrinsic sources absent a threshold finding of ambiguity. And, as in the other states, Wisconsin’s leading methodological case, State ex rel. Kalal v. Circuit Court, is saturated with references to U.S. Supreme Court textualist opinions and federally focused law review articles. Justice Scalia’s methodological approach is credited by the court as its inspiration. Wisconsin’s textualist approach also is treated as precedential.
[T]he past decade has seen a revolution on the subject of interpretive methodology. . . . As in the case of the other states’ justices, the Michigan justices see no difference between the respective roles of federal and state judges in statutory interpretation and routinely argue aggressively that the reasons for supporting textualism in the federal courts are equally applicable in the state court context.
Though more open to legislative history than Justice Scalia might like, this widespread use of modified textualism in state courts is a huge step forward for judicial conservatism. In the words of the article’s abstract, “far from textualism being ‘dead,’ what emerges from these state cases is a surprisingly strong consensus methodology — what this Article terms ‘modified textualism’ — a theory that shares textualism’s core components but has broader potential appeal.”
Conservatives should continue to focus on state high courts, because their efforts are apparently paying off. The days of court-led social experiments encouraged by Bill Brennan’s “new federalism” are fading, and a Scalia-style textualism is rising in its place.