In today’s polarized political climate, Americans nervously anticipate U.S. Supreme Court rulings with the same fervor with which they enjoy sports, and with the same goal in mind: namely, to win. But American government is not a game, cautions United States Court of Appeals Judge Jeffrey S. Sutton. By forcing the Supreme Court to make notably divisive, winner-take-all decisions, he argues, we run the risk of politicizing the “crown jewel of American government.”
Sutton is the chief judge of the United States Court of Appeals for the Sixth Circuit. First nominated to a seat on the Sixth Circuit by President George W. Bush in 2001, Judge Sutton was confirmed in 2003. He became chief judge on May 1, 2021. His second book on American constitutional law, Who Decides: States as Laboratories of Constitutional Experimentation, was recently published by Oxford University Press.
Sutton recently spoke with Governing Editor-at-Large Clay Jenkinson. The following transcript of their conversation has been edited for length and clarity.
It was humbling to lose those cases. And it was eye-opening to see firsthand the relevance of state constitutions.
Constitutional Challenges to State and Local Laws
Governing: Who Decides is your second volume on state and federal constitutional law, and it follows 51 Imperfect Solutions: States and the Making of American Constitutional Law. What were your motives in writing these books?
During those years, I worked with a lot of good, earnest, well-intentioned public servants. Through it all, I came to wonder why we as a country aren’t using state governments more often as a solution to some of our most intractable problems? Another impulse for writing these books comes from my experience as a federal judge. I love the federal courts. So much of my legal education came from clerking at the Supreme Court, arguing cases there, and eventually serving as a court of appeals judge who reports to the court. Those experiences prompted me to wonder if we as Americans have come to ask too much of the court in resolving our most difficult policy disputes. Are there ways, I asked, to develop a greater consensus before forcing the Supreme Court to make these winner-take-all decisions? Is it possible that we should focus more attention on who decides rather than on what is decided?
Revisiting the Brandeis Formulation about States as Laboratories of Democracy
Justice Brandeis’ trenchant insight — that the states could be laboratories of experimentation in handling new social problems — has potential relevance for the court. When Justice Brandeis invoked this virtue of federalism, he was referring to state legislatures as the laboratories. Better, he thought, to try novel policy experiments in state legislatures before nationalizing a solution in Congress. Why isn’t that an equally powerful insight when it comes to identifying new federal constitutional rights? Let state courts take the lead in construing their state constitutions — the original source of virtually every federal constitutional right. And let state courts be at the vanguard in identifying novel rights that account for new challenges or new norms in society. After this trial and error, the U.S. Supreme Court can decide when to nationalize some rights and when to allow variation in the states to account for the rich variety of circumstances they face.
Governing: The Supreme Court today is viewed through an increasingly political lens.
Judge Sutton: One challenge is to attend to what the court is actually doing rather than to what other people say it is doing. It sometimes happens that people who attempt to describe what the court is doing have agendas of their own. That is one reality. Another reality is that a justice's theory for interpreting the U.S. Constitution matters and can make a consequential difference in a case. Happily, judges and justices must explain their decisions through written opinions, a process that allows them to show in objective ways why their approach to interpretation leads to a certain outcome. That nearly a third of the court’s decisions in a given year are unanimous, and that those cases implicate legal questions that divided the state high courts and lower federal courts, all show that there is considerable common ground in decision-making. The typical American of course is not going to read those decisions and at best might read what someone else (usually not a lawyer) says about those decisions. That leaves the population inundated with stories about who-decides answers, not who-decides questions. This would not be a problem if we as Americans asked less of the court — if we looked to state courts and state legislatures and Congress to resolve more of our policy debates. But that has not been the trend in American history over the last 60 years or so.
Deferring to Supreme Court in the Name of Fairness
No one at the American founding took the view that the U.S. Supreme Court should resolve the most difficult issues in American government or be the key change agent in society. Not only was that never the idea, but it also is not a sustainable idea. Instead of resisting this trend, we Americans have come to embrace the court’s authority to resolve more and more questions that go to the core of representative government. In that sense, I suppose, we have gotten what we seem to want, empowering the court to make more decisions for us. As a matter of outcomes, one could even argue that there is a certain fairness to all of this because the court tends to recognize rights of various political stripes and ultimately issues decisions that tend to favor the agendas of both political parties. But do we really want to have so much authority exercised by so few people? Imprudent though the American people may be in the short term, they are not imprudent in the long term. Having come to appreciate the power of the court, they increasingly want a say in who its members are. That explains why the 2016 presidential election, by too many accounts to deny, turned on a sufficient number of Americans treating a vote for the president of the United States as a proxy to fill one seat on a nine-member court. Add to this the reality that U.S. senators increasingly vote on partisan lines when it comes to confirmation hearings, and it becomes understandable that American citizens would start to see the court in political terms.
What Would Jefferson Do?
This is not an easy problem to fix. No country in world history has embraced judicially enforceable rights more than we Americans have. One potential compromise, which is very Jeffersonian, is to continue to embrace this distinctly American phenomenon, even when it comes to general constitutional guarantees and unenumerated rights, but only after obtaining input from the states about the utility and wisdom of adopting them. When the court nationalizes new constitutional guarantees that divide the country, it leads to resentment because the effect of nationalizing a federal constitutional right is to prohibit Americans from voting on it in state or federal legislatures or from seeking relief in state courts. One way out of this trap is for the court to seek more input from the states before nationalizing new rights and guarantees, particularly when those rights are not spelled out in the U.S. Constitution. Instead of facilitating a first-to-the-gate, winner-take-all approach, let the state courts take the lead in winner-take-some decisions at the outset. If they identify a winning insight, it can be nationalized through the Supreme Court. If they don't identify a singular winning insight, that leaves the possibility that America is a sprawling and diverse country with room for variation when variation is due.
Governing: In Who Decides, you suggest that the amendment trigger in the U.S. Constitution is so high that it's fossilized us in an 18th-century document. But on a more positive point, you contend that the states-as-laboratory system provides us the opportunity to determine best practices along state or regional boundaries.
Judge Sutton: Those are two central themes of the book, and they leave a hopeful possibility — that federalism offers a clever tool for dealing with tricky issues facing this large, multiperspective country. At the founding, Jefferson and Madison agreed on almost everything. They lived 20 miles apart, they were sequential presidents, one wrote the Bill of Rights, one the Declaration of Independence. It's striking that these two men saw so many things the same way, but they still could not agree on a pivotal component of a constitution: How often should it be changed? Jefferson said that we shouldn’t let the dead control the living, that each generation should have a new constitutional convention in which they started from scratch in deciding what their constitution should say. Madison emphasized stability, reasoning that no one would venerate and respect a constitution that was too readily changeable.
The Jefferson view, as it turns out, prevailed in the states. Most state constitutions may be amended with a mere 51 percent vote by the people. If you look at state constitutions throughout the last 245 years, you see lots of amendments, reflecting layer after layer of American history. All of this has made the states hyperdemocratic, permitting their citizens to tell their leaders what they want at a given moment in time and to change the rules of the game from time to time. There’s lots of change, to be sure. But in each instance that change happens within just one of 50 jurisdictions at a time.
The pandemic offers a useful, if challenging, illustration of the strengths of federalism, of having two governments with authority in each state in the country.
A Difficult Problem to Solve
On the federal side, Madison prevailed. We have a more rigid republican model, which is often nondemocratic and is always difficult to change. Of our 51 constitutions, the federal one is far and away the most difficult to change. With its three-quarters-of-the-states requirement for approval, it is designed to require, and account for, input from the states. The federal amendment process is slow, to be sure, and Americans tend not to be a patient lot when it comes to dealing with new priorities. But this has created a fairly stable document for the last 245 years, though it has created pressure to change the federal charter through interpretation rather than amendment.
The pandemic offers a useful, if challenging, illustration of the strengths of federalism, of having two governments with authority in each state in the country. At one level, we can all agree that it was a good idea for the national government to lead the effort to develop a vaccine. We couldn't have trusted one state or even a group of states to do it, and they would not have had the resources anyway. At another level, some states tried experiments that did not work and would have been perilous had they been nationalized from the outset. In retrospect, we now know it was not a good idea for a state to deal with a shortage of hospital beds by sending older patients to nursing homes. But what if the national government had decided to handle bed shortages in this way? Trial and error work best with smaller jurisdictions and fewer people. Much as we need a national backstop for some problems and national leadership for others, there are many vexing challenges for government that demand experimentation in the states first and nationalization later.
The Grass-Roots Imperative
Governing: After the Bill of Rights, which was more addendum than amendment, there have been 17 amendments to the Constitution over 234 years. Is that enough?
Judge Sutton: Perhaps not. One difficulty is that the amendment process under Article V of the U.S. Constitution is challenging. As I said, it requires three-quarters of the states to approve an amendment. Even so, we used to have a tradition of using constitutional amendments as the way to handle new circumstances or shifting norms in our country. Consider how we handled our ancestors' views of gender and gender discrimination. It took almost a quarter century for women to obtain the right to vote as a matter of federal constitutional law. The effort started in the states, initially the western states, where the key innovations occurred — not just a right to vote but also other rights connected to gender equality, including the rights to own property, to inherit property, to initiate a divorce, to join this or that profession, and countless others. All of this led to the 19th Amendment in 1920. It’s a fair point to wonder how patient one has to be for something so central to the notion of equality to take hold. But at the same time, the grass-roots imperative for passing a constitutional amendment means that any such change is likely to become a stable change. When you go through that kind of rigorous process, that's usually the end of it. Few people still consider such changes up for grabs. The rare exception — Prohibition — proves the rule. The more one cares about a change in constitutional norms, the more one would think those changes should be stable. Anyone who wants long-lasting, deep-rooted change must look to the states first — an approach that requires effort and patience no doubt but an approach that is far more likely to last.
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You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour. He is also a frequent contributor to the Governing podcast, The Future in Context. Clay’s most recent book, The Language of Cottonwoods: Essays on the Future of North Dakota, is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing cjenkinson@governing.com or tweeting @ClayJenkinson.
