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Saturday, March 30, 2019

Constantineau returns again

Earlier this month, I highlighted an exchange in the American Legion argument in which Justice Kavanaugh seemed to adopt the idea that SCOTUS can avoid deciding federal constitutional issues in deference to a state supreme court applying the state constitution to the problem. Justice Gorusch made the same move in last week's argument in Rucho v. Common Cause (the North Carolina partisan gerrymander) in an exchange with the attorney for the League of Women Voters:

But -- but you also have the state supreme court option, as -- as Justice Kennedy -- Kavanaugh pointed out. And we often overlook that possibility in -- in our -- in our federal system.

Fortunately, and unlike  in American Legion, counsel here was ready with the right answer: "Other options don't relieve this Court of its duty to vindicate constitutional rights."

Theme warning.

Posted by Howard Wasserman on March 30, 2019 at 04:36 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


Whether or not that's the right answer legally or normatively, and I'll just assume that it is, I don't think it's the right answer as a matter of advocacy. The Justices who ask these sorts of questions are not unaware that some people reject the premise of their questions; however, they obviously don't, and simply making the pat assertion that the possibility of relief in state courts doesn't relieve the Court of its duties isn't going to persuade them to disavow their view that in some circumstances, it actually can, or that the possibility of relief in state courts may suggest that the Constitution has nothing to say about this issue. (Nor would citing Constantineau persuade them.) The right approach for an advocate to take to questions like these is to attempt to show that relief in the state courts or legislatures is unlikely. So a much better answer to a similar question about ballot initiatives was actually given earlier in the argument when a lawyer for the other plaintiffs said that states east of the Mississippi generally don't have citizen initiatives.

Posted by: Asher | Mar 31, 2019 6:01:49 PM

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