When the U.S. Supreme Court Is Not the Last Word: Dialogue Between State Supreme Courts and Its Role in State Constitutionalism
Total Page：16
File Type：pdf, Size：1020Kb
WHEN THE U.S. SUPREME COURT IS NOT THE LAST WORD: DIALOGUE BETWEEN STATE SUPREME COURTS AND ITS ROLE IN STATE CONSTITUTIONALISM by MARK W. DENNISTON B.A., Simpson College, Indianola, Iowa (1997) J.D., University of Iowa College of Law (2000) M.A., University of Colorado at Boulder (2007) A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirement for the degree of Doctor of Philosophy Department of Political Science 2012 This thesis entitled: When the U.S. Supreme Court is Not the Last Word: Dialogue Between State Supreme Courts and its Role in State Constitutionalism written by Mark W. Denniston has been approved by the Department of Political Science Date: Tuesday, May 22, 2012 ______________________________________________ John P. McIver, Advisor and Committee Chair ______________________________________________ Vanessa A. Baird ______________________________________________ Kenneth Bickers ______________________________________________ Frank Colucci ______________________________________________ Scott A. Moss The final copy of this thesis has been examined by the signatories, and we find that both the content and the form meet acceptable presentation standards of scholarly work in the above mentioned discipline. IRB protocol # 11-0030 iii Denniston, Mark W. (Ph.D., Political Science) When the U.S. Supreme Court is Not the Last Word: Dialogue Between State Supreme Courts and its Role in State Constitutionalism Thesis directed by Associate Professor John P. McIver State supreme courts occasionally rely on the provisions of their own state constitutions to expand rights for their citizens beyond the protections that the U.S. Supreme Court has interpreted the U.S. Constitution to require. This practice is known as the New Judicial Federalism. State supreme courts have the prerogative to recognize more expansive rights under their state constitutions because the U.S. Constitution sets a floor and not a ceiling for the protection of individual rights. On the other hand, the U.S. Supreme Court has unmatched resources as well as unparalleled prestige, and most state supreme courts give considerable respect and deference to its interpretations of common or similar constitutional language. The challenge for political scientists is to explain why some state supreme courts have chosen to expand rights and why other courts prefer to follow the example and interpretation of the U.S. Supreme Court. I hypothesize that state supreme courts are engaged in an ongoing dialogue about rights by considering the reasoning contained in sister state supreme court decisions, prior deciding court precedent, and changes in U.S. Supreme Court precedent, when deciding whether to expand rights under state constitutions. This dissertation examines the decisions of state supreme courts, as well as interviews with state supreme court justices, to examine why state supreme courts sometimes render rights expanding decisions, but more often follow the approach adopted by the U.S. Supreme Court in interpreting the U.S. Constitution. iv ACKNOWLEDGMENTS First, I want to thank my wife Christie. Without her patience, support and love this dissertation would not have been possible. Seven years is a long time to wait for a loved one to pursue their dreams and aspirations. We were told my returning to school was not the financially prudent course, and yet you had the courage to pursue it anyway. I appreciate your strength to shoulder the burden and stresses of work while I researched and read and wrote and taught. Thank you for bringing me to share your family next to the mountains of Colorado. Next I want to thank the teachers and professors throughout all of my years of school who have helped me at every stage of my academic journey. In particular I want to thank my advisor, John McIver, who read so many drafts of conference papers and dissertation chapters and who patiently waited as the weeks stretched into months as I revised my work. I am sure what follows is only half as good as it might have been had I followed all of your suggestions. I want to also thank Vanessa Baird, without whose encouragement this would still not be written, and Ken Bickers who saw the very first versions of this work as part of a project for his class. I also want to thank all of the state supreme court justices who were interviewed as part of this research. I asked the questions, but they provided the answers. I want to especially thank Justice Jerry L. Larson of the Iowa Supreme Court, for whom I clerked. Had you not hired me to be your clerk and helped me to learn the law this dissertation about state courts would never have happened. My academic career sprouted from the seeds you sowed. v CONTENTS INTRODUCTION……………………………………………………………………….. 1 CHAPTER 1 THEORETICAL BACKGROUND: HISTORY OF NJF AND DIALOGUE THEORY………………………………………………………….. 14 I. Explanation and History of New Judicial Federalism……………………………. 14 II. A Dialogue Theory of State Constitutionalism…………………………………… 19 A. So What Does Dialogue Look Like?............................................................ 24 B. Who is a Party to the Dialogue?……………………………………………. 24 C. Is Dialogue Happening?................................................................................ 25 D. Is the Dialogue Having Any Discernible Effect?......................................... 26 III. Theoretical Foundations……………………………………………………………… 30 Hypothesis 1: Horizontal Federalism……………………………………………… 30 Hypothesis 2: Vertical Federalism………………………………………………... 34 IV. Alternative Explanations…………………………………………………………….. 36 A. Ideology of Sister States……………………………………………………. 36 B. Judicial Selection Methods…………………………………………………. 38 CHAPTER 2 OHIO CASE STUDY…………………………………………………… 40 I. Why Choose Ohio?................................................................................................. 40 II. Ohio and the New Judicial Federalism……………………………………………. 43 III. Case Selection…………………………………………………………………….. 48 IV. Recent Decisions in Ohio Expanding State Constitutional Rights……………….. 49 V. How Well Do the Horizontal and Vertical Federalism Hypotheses Fit Recent Ohio Decisions Expanding State Constitutional Rights?................................... 60 VI. Recent Decisions in Ohio Following U.S. Supreme Court Precedent……………. 62 VII. Lessons and Developing ABC analysis………………………………………….. 69 vi CHAPTER 3 METHODOLOGY, CODING AND MEASUREMENT……………… 74 I. Nine State Research Design……………………………………………………….. 76 II. Measuring the Dependent Variable………………………………………………... 77 III. Measuring the Independent Variables……………………………………………... 80 A. Measuring Horizontal Federalism Hypothesis: Influence of Sister State Decisions………………………………………………………………….. 80 B. Measuring Vertical Federalism Hypotheses: The Role of Precedent……….. 83 1. Is the Current Supreme Court Precedent Narrower Than Prior Precedents?............................................................................................ 83 2. Deciding Court Precedent Made Before the Controlling Supreme Court Precedent……………………………………………………………….. 83 CHAPTER 4 EMPIRICAL RESULTS………………………………………………… 85 I. Nine State Research Results……………………………………………………….. 85 A. Horizontal Federalism results.……………………………………………….. 89 B. Vertical Federalism results…………………………………………………… 94 C. Alternative Explanations……………………………………………………... 96 II. Prestigious States…………………………………………………………………... 104 CHAPTER 5 SISTER STATE DIALOGUE: THE GOOD FAITH EXCEPTION… 109 I. The First Mover Decisions…………………………………………………………. 114 II. Lincoln v State……………………………………………………………………… 118 III. State v Wilmoth…………………………………………………………………….. 119 IV. State v Saiz ………………………………………………………………………... 120 V. Commonwealth v Edmunds………………………………………………………… 121 VI. People v Krueger…………………………………………………………………………… 123 VII. State v Cline………………………………………………………………………………… 125 VIII. Garza v State ……………………………………………………………………… 129 IX. State v Daniel…………………………………………………………………….... 130 X. Lessons …………………………………………………………………………… 132 vii CHAPTER 6 INTERVIEWS WITH STATE SUPREME COURT JUSTICES…… 133 I. Overview and Description of Process……………………………………………… 133 A. Design and How Interviews Were Conducted……………………………….. 135 B. Interview Participants………………………………………………………… 139 II. Are Sister State Decisions Influential Upon State Supreme Courts?...................... 142 A. Divergence Factors Across Courts…………………………………………… 146 B. Relative Weight of Sister State Citations to Other Factors………………….. 153 C. What about Sister State Decisions is Influential?........................................... 167 1. Trend and Numbers……………………………………………………….. 168 2. Prestige……………………………………………………………………. 170 3. Sister State Ideology……………………………………………………… 173 4. Role of Opinion Author………………………………………………….. 173 D. Sister State Influence versus the Role of Ideology………………………….. 177 III. The Role of Precedent on Supreme Court Decision Making……………………… 180 A. Role of U.S. Supreme Court Precedent……………………………………… 181 1. U.S. Supreme Court retreat………………………………………………. 181 2. Degree of Division of U.S. Supreme Court……………………………… 182 B. Role of Deciding Court Precedent…………………………………………… 185 IV. Evidence for Alternative Explanations……………………………………………. 187 A. Role of Political Ideology as Alternative Explanation……………………… 188 B. Role of Judicial Selection Method as Alternative Explanation…………….. 191 C. The Role of Public Opinion ………………………………………………… 195 V. Lessons From the Interviews……………………………………………………… 197 . CHAPTER 7 CHALLENGES, FUTURE RESEARCH, CONCLUSION…………. 205 I. Challenges of Merging Legal Approach