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Tuesday, October 01, 2013

It's All About the States

An article today in the Washington Post about the limits on Boehner’s leadership options touched a nerve with me, not just because of what it tells us about the causes of and possible resolutions to the shutdown (it’s a grim read), but because it highlights what I think is one of the great failures, or at least blindspots, of legal academia.

The legal academy loves—just loves—to write about the federal system. For every article on state criminal law issues there are dozens and dozens on federal criminal law, even though state prisons hold nearly 90% of all prisoners and federal criminal law is a unique beast that provides no insights about state criminal justice.

And I bet there have been close to a quadrillion words spilled on the US Supreme Court, looking at it from every doctrinal, methodological, empirical, Kremlinological, and any other “-ical” angle. Yet nowhere near that much attention has been paid to state supreme courts, which likely play just as big, not a bigger, roles in our day to day lives.1 If it’s federal, it must be important. And if it’s state, well….

I get it. The major law reviews aren’t going to publish an article about Kansas law, and an article about state policies won’t get cited by the US Supreme Court (but it may get discussed by a state supreme court, which isn’t nothing). Plus it is just so much easier: there is just one federal policy for every issue, not some chaotic swirl of 50 different approaches. But all this could just mean that our incentives are misaligned and that we are generally overlooking what really matters and what is really driving policy.

Which is why I found the following part of a conversation between the WaPo’s Ezra Klein and the NRO’s Robert Costa so satisfying. Professionally satisfying, that is, as someone who focuses exclusively on state policy. The implications for resolving gridlock are, as I noted above, grim. But putting aside the whole “political and economic health of our country” issue, very satisfying.

Costa—a National Review correspondent, mind you—has acknowledged that many of the Tea Party Representatives live in an echo-chamber cocoon that convinces them they can accomplish what they in fact cannot. Lest you think I paraphrase poorly, this is how a National Review journalist describes the Tea Party fringe:

And so many of these members now live in the conservative world of talk radio and tea party conventions and Fox News invitations. And so the conservative strategy of the moment, no matter how unrealistic it might be, catches fire. The members begin to believe they can achieve things in divided government that most objective observers would believe is impossible.

Depressing, but not what I want to focus on. It’s Klein’s follow-up question, and Costa’s answer, that matter here:

EK: Why does that happen, though? It would absolutely be possible for liberal members to cocoon themselves in a network of liberal Web sites and liberal cable news shows and liberals activists. But in the end, liberal members of Congress end up agreeing to broadly conventional definitions of what is and isn’t politically realistic. So how do House Republicans end up convincing themselves of unrealistic plans, particularly when they’ve seen them fail before, and when respected voices in the Republican and even conservative establishment are warning against them?

RC: When you get the members off the talking points you come to a simple conclusion: They don't face consequences for taking these hardline positions. When you hear members talk candidly about their biggest victory, it wasn’t winning the House in 2010. It was winning the state legislatures in 2010 because they were able to redraw their districts so they had many more conservative voters. The members get heat from the press but they don't get heat from back home.

Why are we in this mess? State law. After all, redistricting is a state issue, and every state is free to do it how it sees fit. Some gerrymander like crazy while others have relatively realistic boundaries (even though gerrymandering does not really matter for aggregate outcomes); at least one relies on an independent commission while most leave it to whoever happens to control the state legislature in years ending in “zero” (which makes total sense); some aggressively fighter the specter of “voter fraud” while others take a more open approach.

The point is: at the end of the day, the current mess in Congress is the result of state laws, state policies, and state electoral outcomes. You can’t look just at Congress and have any idea why this is happening or how it is going to change. 

I don’t have any hope that we’ll suddenly see piles of articles on state supreme courts and county probation policies (even though there are 3.9 million people on parole and only 140,000 in federal prisons). But it never hurts to point out that however important the federal “thing”—court, legislature, code, regulation, etc., etc., etc.—seems, the sate analog is probably doing more work and affecting more people. 


1 Perhaps my disdain for the importance of Court is shaped in part by the fact that I am a straight, white male, so some of the Court’s bigger opinions haven’t changed my rights at all. But even then, I live in New York State, a state that legalized abortion before Roe, gay sex before Lawrence, and gay marriage before Windsor and Hollingsworth. (Yes, those were legislative acts, not judicial, but still points to centrality of the state actors.) And the list goes on: half of all states had an exclusionary rule before Mapp, for example,


Posted by John Pfaff on October 1, 2013 at 05:55 PM | Permalink


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Upon reviewing one of my drafts on criminal conspiracy and the First Amendment, a wonderful colleague of mine suggested I use the "ALLSTATES" selector on Westlaw. I was able to review all relevant state cases from around the county for a twelve year period, and the process was incredibly worthwhile and enjoyable. Often, state legal trends lead federal legal trends, and they are usually so much more interesting.

Posted by: Steven R. Morrison | Oct 1, 2013 11:42:45 PM

Well said, John. I hope anyone interested in learning more about state constitutions and the courts that interpret them will come to Wayne State's symposium on Oct. 11.

Posted by: Justin Long | Oct 2, 2013 11:31:21 AM

Going back to the archives, I find a similarly situated post, focused more on the judiciary and state-vs-federal prestige.


Posted by: Paul Horwitz | Oct 2, 2013 5:13:00 PM

Paul, that's a prescient post, given that Eid has become a quasi-feeder judge -- she's placed at least two clerks with Thomas.

Posted by: Coloradan | Oct 2, 2013 6:08:49 PM

Thomas is a standout in that respect. Would that there were more.

Posted by: Paul Horwitz | Oct 2, 2013 6:25:16 PM

I think that it's more because she clerked for him. Plus at least one of them added a Gorsuch clerkship on there (and I wouldn't be surprised if the other one did as well).

Posted by: Coloradan | Oct 2, 2013 6:32:48 PM

Not to derail this thread too much, but Thomas really does deserve credit in this regard. Since '01, he has made it a point to hire some top grads from regional schools in the top 50/100(e.g., kansas, byu, creighton, rutgers, utah, lsu) who have secured top clerkships. the tacit notion that these individuals are somehow less capable of serving as scotus clerks than ivy league grads is highly questionable. thomas has also said that he planned to start hiring clerks from his assigned circuit (which he has recently done twice), which i think is a nice touch.

Posted by: anon | Oct 2, 2013 8:58:57 PM

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