NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features the Honorable Jeffrey S. Sutton. Judge Sutton sits on the United States Court of Appeals for the Sixth Circuit. He is the author of 51 Imperfect Solutions: States and the Making of American Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: What is the scope of authority of state courts? How is it related to and different from the power of federal courts? We’re joined today by Judge Jeffrey Sutton to discuss the proper, limited jurisdiction of the federal courts and the importance of the state courts.How do federal court decisions affect state courts? Is it a problem or a benefit if state courts generate “51 imperfect solutions” for a national issue? JEFFREY SUTTON: The who decides question is whether the federal courts decide, the state courts decide, or state legislatures, or even Congress decides. I think most people would agree that by and large the state legislatures have probably been the key leaders in this area. A close second would be the state courts. Those are two examples of situations where the states through their legislatures or courts have set a pretty good example in the development of American Constitutional Law. One of the basic problems in American Constitutional Law, in my view, is that too often state courts are tempted to adopt similar interpretations of guarantees in the U.S. Constitution. Just to step back for a second, the state courts are the final interpreters of their state constitutions. Nothing the U.S. Supreme Court says requires a state court to interpret its Constitution however it wishes. That's up to the state courts, but very often in American law, state courts will lock step or follow very closely what the U.S. Supreme Court has done in construing say due process, free speech, equal protection. The reason that's unfortunate is that of course diminishes the laboratories of interpretive experimentation. The state courts are the final interpreters of their Constitution and they ought to perform that duty independently on behalf of the separate sovereigns that the states are. One unfortunate effect of a state court that locks steps or hews to U.S. Supreme Court decisions in construing state law is we lose the laboratories of interpretive experimentation that I think the system was designed to embrace. Really, when it comes to U.S. Supreme Court decisions, of course, citizens can disagree with them, professors can disagree with them, but they really can't lead to change absent a constitutional amendment. It's very difficult. It requires three quarters of the states to amend the U.S. Constitution. One healthy way, however, to disagree or perhaps see slightly differently some Constitutional debates is to allow the state courts to construe their own guarantees a little differently. The U.S. Supreme Court, for example, might embrace substantive due process in construing the due process clause, but a state court doesn't have to do that. The U.S. Supreme Court might adopt a living constitutionalists interpretation of due process, but a state court could decide to adopt an originalist interpretation of due process, or vice versa. It can go in either direction. The key point is the states are independent sovereigns when it comes to interpreting their own constitution and they should take that duty seriously. PUBLIUS: Other than interpreting their own state constitution, what other authority do state courts exercise? Can you explain it in contrast to the authority or jurisdiction of the federal courts? JEFFREY SUTTON: The federal courts, the key power they authorize, the key who decides question they're presented with is the meaning of federal law. If there's an interpretation of a federal statute, the Federal Constitution, that's the leading role of the federal courts, from the Federal District Court, to courts like mine, the intermediate Federal Courts of Appeals up to the U.S. Supreme Court. Congress is also through the Constitution authorized the federal courts to interpret state law in diversity cases and in cases presenting pending collateral state law claims. The federal courts can decide federal and state questions. They even can decide state constitutional law questions. When it comes to state law questions the key limit is they're not the final decision makers. Even a U.S. Supreme Court decision on the meaning of a state law or a state constitution would not bind the state court that's responsible for that particular state guarantee. We do get to decide federal and state law questions, we're just not final decision makers when it comes to state law issues. The state courts are truly the courts of general jurisdiction. They really can hear everything. The federal courts of course have limited jurisdiction. You have to meet certain requirements to get those cases into federal court. All states have trial courts of general jurisdiction and they can hear state law questions, federal law questions, statutory questions under federal or state law, common law questions under state law. They truly are the key decision makers. The statistic varies from time to time, but I don't think I'm far off. The last time I think I saw this roughly 95% of the cases decided in this country go through the state courts. One of the reasons I wrote 51 Imperfect Solutions is I want Americans, citizens, and American lawyers to develop a greater appreciation of the central role of the state courts when it comes to litigation, dispute resolution, deciding the meaning of our federal and state laws. They play a really significant role if they're deciding 95% of our cases in a given year. When you think of the original framing, and really the first 150 years of the role of the U.S. Supreme Court, it just was not as nearly significant as it's become in the last 75 years or so. You might ask yourself what happened. There are two big things that have happened. First, the power of Congress has grown over time. After the 1930's in particular, several decisions in the 1930's, the Congress, the key thing is the Congress, has been given more power to regulate, primarily through the interstate commerce clause. The definitely of interstate commerce has grown over time. That's given Congress more who decides power. If Congress has more power, that means there are more federal statutory disputes for the federal courts to resolve. That's one way in which the federal courts power has grown. The other way, maybe the most significant when it comes to some of our most essential disputes in American policy and constitutional law, has been the incorporation of so many of the federal constitutional guarantees. The Bill of Rights which is ratified in 1791 and has the free speech, free exercise clauses, Second Amendment, due process clause, those all applied just to the federal government. It wasn't until the 1920's and 30's that some of those guarantees in the Bill of Rights started to apply to the states through the doctrine of incorporation, using the due process clause to incorporate those guarantees and make them applicable to the states. Of course, by the end of the Warren court most, not all, but most provisions in the Bill of Rights, the first eight provisions in the Bill of Rights, had been made applicable to the states. That dramatically increased the role of the federal courts and the U.S. Supreme Court in determining the meaning of our American constitutional liberty guarantees. Before then, you would have thought of most constitutional disputes as arising under state constitutions and primarily being resolved in the state courts, but once the federal constitutional guarantees, or at least most of them, applied to the states that really gave a significant role to the federal courts in construing them. A very good example of that is the criminal procedure guarantees. The criminal procedure guarantees through decisions like Mapp and Miranda quite dramatically expanded the role of the federal courts in determining the procedures for investigating, indicting, prosecuting crime, and for those who have been convicted for sentencing individuals convicted of state and federal crimes. It's a long story, but it has led to a very significant increase in the role of the federal courts when it comes to liberty protection. PUBLIUS: Aren’t there some rights that ought to be enforced at the federal level? What advantages do we get from having different state solutions? JEFFREY SUTTON: One way of thinking about this is it's not a terrible idea to nationalize certain constitutional liberty guarantees. If we know the meaning of a guarantee, we think it's an essential guarantee, and it's clearly in the U.S. Constitution, we should all agree that it should be a national right and all 320 million citizens should be protected by it. There's no problem there. The protection should be uniform in every pocket of the country. I think that's fairly easy. Take some free speech or free exercise protections. They should be national. Where this gets complicated is with the reality that many of our guarantees are written in very general terms. Think of unreasonable searches and seizures. What's unreasonable can quite uneasily lead to disagreement and reasonable disagreement between people on one court or between people on different courts. Think of due process or equal protection. The reason the book is called 51 Imperfect Solutions is because so many American constitutional liberty guarantees are written in general language. So general it's very difficult to say there is just one and only one way to interpret it. In that setting, why would we insist on one imperfect solution for the whole country rather than allowing for the possibility of 51 Imperfect Solutions initially? If we develop a consensus about a best practices, a best approach to interpreting a guarantee, why then and only then we can nationalize it. The danger in American constitutional law is too quickly adopting one imperfect solution which might be quite a bit more imperfect than some of the innovations the states might have developed. The reason I think we get this probably is there's tremendous pressure in individual rights litigation for the winner take all victory. If you're an interest group, or perhaps an individual who cares deeply about a given right of course you want a winner take all victory at the U.S. Supreme Court. Better yet, a policy that sidelines a policy opponent and prohibits them from using the right to vote or democracy to choose a different approach to the issue. Interest groups and American citizens are all very opportunistic. They would like their winner take all solution in D.C. whether through congress or the U.S. Supreme Court, whenever they can get it, but over time it turns out they're not very happy when they don't get it. This has led to very serious disagreements, differences of opinion about what these guarantees mean. In that setting I very much like the idea of trying 51 approaches and taking our time before we nationalize an approach. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features the Honorable Jeffrey S. Sutton. Judge Sutton sits on the United States Court of Appeals for the Sixth Circuit. He is the author of 51 Imperfect Solutions: States and the Making of American Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What is the scope of authority of state courts? How is it related to and different from the power of federal courts? We’re joined today by Judge Jeffrey Sutton to discuss the proper, limited jurisdiction of the federal courts and the importance of the state courts.How do federal court decisions affect state courts? Is it a problem or a benefit if state courts generate “51 imperfect solutions” for a national issue? The who decides question is whether the federal courts decide, the state courts decide, or state legislatures, or even Congress decides. I think most people would agree that by and large the state legislatures have probably been the key leaders in this area. A close second would be the state courts. Those are two examples of situations where the states through their legislatures or courts have set a pretty good example in the development of American Constitutional Law. One of the basic problems in American Constitutional Law, in my view, is that too often state courts are tempted to adopt similar interpretations of guarantees in the U.S. Constitution. Just to step back for a second, the state courts are the final interpreters of their state constitutions. Nothing the U.S. Supreme Court says requires a state court to interpret its Constitution however it wishes. That's up to the state courts, but very often in American law, state courts will lock step or follow very closely what the U.S. Supreme Court has done in construing say due process, free speech, equal protection. The reason that's unfortunate is that of course diminishes the laboratories of interpretive experimentation. The state courts are the final interpreters of their Constitution and they ought to perform that duty independently on behalf of the separate sovereigns that the states are. One unfortunate effect of a state court that locks steps or hews to U.S. Supreme Court decisions in construing state law is we lose the laboratories of interpretive experimentation that I think the system was designed to embrace. Really, when it comes to U.S. Supreme Court decisions, of course, citizens can disagree with them, professors can disagree with them, but they really can't lead to change absent a constitutional amendment. It's very difficult. It requires three quarters of the states to amend the U.S. Constitution. One healthy way, however, to disagree or perhaps see slightly differently some Constitutional debates is to allow the state courts to construe their own guarantees a little differently. The U.S. Supreme Court, for example, might embrace substantive due process in construing the due process clause, but a state court doesn't have to do that. The U.S. Supreme Court might adopt a living constitutionalists interpretation of due process, but a state court could decide to adopt an originalist interpretation of due process, or vice versa. It can go in either direction. The key point is the states are independent sovereigns when it comes to interpreting their own constitution and they should take that duty seriously. Other than interpreting their own state constitution, what other authority do state courts exercise? Can you explain it in contrast to the authority or jurisdiction of the federal courts? The federal courts, the key power they authorize, the key who decides question they're presented with is the meaning of federal law. If there's an interpretation of a federal statute, the Federal Constitution, that's the leading role of the federal courts, from the Federal District Court, to courts like mine, the intermediate Federal Courts of Appeals up to the U.S. Supreme Court. Congress is also through the Constitution authorized the federal courts to interpret state law in diversity cases and in cases presenting pending collateral state law claims. The federal courts can decide federal and state questions. They even can decide state constitutional law questions. When it comes to state law questions the key limit is they're not the final decision makers. Even a U.S. Supreme Court decision on the meaning of a state law or a state constitution would not bind the state court that's responsible for that particular state guarantee. We do get to decide federal and state law questions, we're just not final decision makers when it comes to state law issues. The state courts are truly the courts of general jurisdiction. They really can hear everything. The federal courts of course have limited jurisdiction. You have to meet certain requirements to get those cases into federal court. All states have trial courts of general jurisdiction and they can hear state law questions, federal law questions, statutory questions under federal or state law, common law questions under state law. They truly are the key decision makers. The statistic varies from time to time, but I don't think I'm far off. The last time I think I saw this roughly 95% of the cases decided in this country go through the state courts. One of the reasons I wrote 51 Imperfect Solutions is I want Americans, citizens, and American lawyers to develop a greater appreciation of the central role of the state courts when it comes to litigation, dispute resolution, deciding the meaning of our federal and state laws. They play a really significant role if they're deciding 95% of our cases in a given year. When you think of the original framing, and really the first 150 years of the role of the U.S. Supreme Court, it just was not as nearly significant as it's become in the last 75 years or so. You might ask yourself what happened. There are two big things that have happened. First, the power of Congress has grown over time. After the 1930's in particular, several decisions in the 1930's, the Congress, the key thing is the Congress, has been given more power to regulate, primarily through the interstate commerce clause. The definitely of interstate commerce has grown over time. That's given Congress more who decides power. If Congress has more power, that means there are more federal statutory disputes for the federal courts to resolve. That's one way in which the federal courts power has grown. The other way, maybe the most significant when it comes to some of our most essential disputes in American policy and constitutional law, has been the incorporation of so many of the federal constitutional guarantees. The Bill of Rights which is ratified in 1791 and has the free speech, free exercise clauses, Second Amendment, due process clause, those all applied just to the federal government. It wasn't until the 1920's and 30's that some of those guarantees in the Bill of Rights started to apply to the states through the doctrine of incorporation, using the due process clause to incorporate those guarantees and make them applicable to the states. Of course, by the end of the Warren court most, not all, but most provisions in the Bill of Rights, the first eight provisions in the Bill of Rights, had been made applicable to the states. That dramatically increased the role of the federal courts and the U.S. Supreme Court in determining the meaning of our American constitutional liberty guarantees. Before then, you would have thought of most constitutional disputes as arising under state constitutions and primarily being resolved in the state courts, but once the federal constitutional guarantees, or at least most of them, applied to the states that really gave a significant role to the federal courts in construing them. A very good example of that is the criminal procedure guarantees. The criminal procedure guarantees through decisions like Mapp and Miranda quite dramatically expanded the role of the federal courts in determining the procedures for investigating, indicting, prosecuting crime, and for those who have been convicted for sentencing individuals convicted of state and federal crimes. It's a long story, but it has led to a very significant increase in the role of the federal courts when it comes to liberty protection. Aren’t there some rights that ought to be enforced at the federal level? What advantages do we get from having different state solutions? One way of thinking about this is it's not a terrible idea to nationalize certain constitutional liberty guarantees. If we know the meaning of a guarantee, we think it's an essential guarantee, and it's clearly in the U.S. Constitution, we should all agree that it should be a national right and all 320 million citizens should be protected by it. There's no problem there. The protection should be uniform in every pocket of the country. I think that's fairly easy. Take some free speech or free exercise protections. They should be national. Where this gets complicated is with the reality that many of our guarantees are written in very general terms. Think of unreasonable searches and seizures. What's unreasonable can quite uneasily lead to disagreement and reasonable disagreement between people on one court or between people on different courts. Think of due process or equal protection. The reason the book is called 51 Imperfect Solutions is because so many American constitutional liberty guarantees are written in general language. So general it's very difficult to say there is just one and only one way to interpret it. In that setting, why would we insist on one imperfect solution for the whole country rather than allowing for the possibility of 51 Imperfect Solutions initially? If we develop a consensus about a best practices, a best approach to interpreting a guarantee, why then and only then we can nationalize it. The danger in American constitutional law is too quickly adopting one imperfect solution which might be quite a bit more imperfect than some of the innovations the states might have developed. The reason I think we get this probably is there's tremendous pressure in individual rights litigation for the winner take all victory. If you're an interest group, or perhaps an individual who cares deeply about a given right of course you want a winner take all victory at the U.S. Supreme Court. Better yet, a policy that sidelines a policy opponent and prohibits them from using the right to vote or democracy to choose a different approach to the issue. Interest groups and American citizens are all very opportunistic. They would like their winner take all solution in D.C. whether through congress or the U.S. Supreme Court, whenever they can get it, but over time it turns out they're not very happy when they don't get it. This has led to very serious disagreements, differences of opinion about what these guarantees mean. In that setting I very much like the idea of trying 51 approaches and taking our time before we nationalize an approach. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!