This article grew from the Ola B. Smith Lecture that Judge Sutton, an adjunct professor at Moritz, gave at the University of Virginia Law School. In San Antonio School District, the Supreme Court faced a challenge to the Texas public school system which, by its heavy dependence on property taxes, created gross differences in funding on a per pupil basis across the state. In its 5-4 ruling for the defendants, the Court found that education was not a fundamental right, that wealth was not a suspect classification and, as Justice Stewart wrote in his concurrence, though the challenged system was “chaotic and unjust,” it did not violate the federal constitution.

In this article, Judge Sutton examines the history of school funding in the 35 years since Rodriguez, noting that by now every state has adopted a school-financing equalization scheme of some kind, which tended to increase the minimum spent by each school district, and that lawsuits under state constitutional provisions have brought further funding improvements (45 states have faced state-constitutional challenges, with plaintiffs prevailing in 28 of the cases). The article asserts that, “[r]ight or wrong, Rodriguez unleashed school-funding innovation throughout the country that exists to this day.” As a result, Judge Sutton suggests, perhaps advocates of progressive reform for public schools have achieved more through losing Rodriguez than they would have by winning.

While recognizing that severe inequities in school funding remain, the article offers half a dozen reasons why the piecemeal state legislation/state lawsuit approach may have been better than a win in Rodriguez, including the difficulty of imposing a single remedy across the country, the Court’s questionable competence in providing a remedy for such complex policy issues, and the difficulty the Supreme Court would have had in “trying to compel legislatures to raise money” for what is, at bottom, a monetary issue. Indeed, Judge Sutton notes, a similar reaction of “if the Court will not regulate we will have to,” has arisen with regard to the power of eminent domain following the Court’s decision in Kelo v. City of New London, declining to find a Takings Clause violation in the presence of a public use.

Judge Sutton concludes that “[i]n the final analysis, the policy issues implicated by Rodriguez seem more amenable to fifty imperfect solutions than one imperfect solution, particularly if . . . a one-solution approach would have faced so many remedy-limiting constraints.”

Judge Sutton has been a leading proponent for the study and teaching of state constitutionalism and its potential importance in the advocate’s toolkit. He has written a leading casebook and many articles on the subject and has regularly taught the class as well. In this article, the lead piece in a symposium on state constitutional law, Judge Sutton identifies some of the primary reasons that state constitutional law has not gained a more prominent place and analyzes their merits.

In this essay, which originated as the Brennan Lecture on State Constitutional Law, Jeff argues that, as a strategic matter, state constitutional law claims are badly underemployed by lawyers and identifies the inattention of law school curricula to state constitutional law as a key factor in that underutilization. The essay identifies “crowding out” by the power, historical significance, and ease of study of the national constitution, and prospects for professional advancement for law professors as partial explanations for state constitutional law’s appearance in the course listings of only a minority of law schools.

The essay then turns to a call-to-action for lawyers to bring state constitutional claims; the essay points to both strategic reasons for lawyers to do so and broader concerns suggesting it would be a positive development beyond individual client concerns. First, Jeff identifies state constitutions as a separate bite at the apple in attempting to invalidate a local law; two chances to win are better than one. Second, state courts may be more amenable to identifying “new” constitutional rights and remedies because they face less diversity of circumstances and are more capable of calibration with local history and conditions than the U.S. Supreme Court interpreting a constitution governing fifty states. Moreover, state constitutional decisions, the essay contends, are more easily reversed if erroneous, are more likely to risk innovation, and can sometimes rely on unusual provisions not found in the U.S. Constitution.

Finally, Jeff argues that more active development of state constitutional law will improve federal constitutional law by providing a “market of common law decisions” that, for example, were critical to the development of tort, property and contract law.

By Judge Sutton’s reckoning, in 2007 the Court decided half as many cases as it did two decades earlier and yet reached constitutional decisions on historical grounds in twice as many cases. Judge Sutton describes a sea change in decision-making (and, consequently, in advocacy directed at influencing that decision-making) as significant as the Brandeis briefs of the early 20th century. In this essay, Judge Sutton documents and then discusses the advantages and disadvantages of this growth in historical evidence as a means of interpreting the constitution.

The article cites not only the potential advantage of avoiding judicial policy preferences as a decision method, but also the benefits history may provide even to standards with evolving meanings as well as history’s potential to provide a fair basis for deciding when to overrule precedents. Judge Sutton also contends that “the recent trend in favor of historically based constitutional decisions thus far has not produced results reflexively consistent with one political stripe over another.”

On the negative side of the ledger, Judge Sutton is skeptical about the historical skills of both lawyers and judges, notes that history may hide, rather than forestall, judicial reliance on policy preferences, is concerned that history may give the appearance of divorcing the law from relevant criteria (e.g., the public may have trouble “accepting that whether a citizen can possess a handgun turns on edicts issued in the Scottish Highlands centuries ago, or that the government’s ability to pursue terrorists turns on arcane anecdotes from the furthest reaches of the now-defunct British empire”), and worries that courts’ historical errors will lack a path to correction.

The final section of the essay looks to the use of history in the future. Judge Sutton sees the enhanced role for history in constitutional decision-making continuing, though he thinks it will not frequently be decisive. He is optimistic that the bar will be up to the tasks of providing valuable historical evidence and checking the other side’s history, and that the bar will improve in these roles over time, helped by better access to historical materials. He also hopes that historical arguments will be raised and contested more frequently in lower courts (instead of being thoroughly covered for the first time in the Supreme Court), providing the sharpening of arguments and narrowing of issues normally accomplished by lower court adjudication.

Judge Sutton has made the teaching of state constitutional law, a course he offers at the Moritz College of Law, a theme of his scholarship. Judge Sutton has argued passionately and persuasively about the importance of state constitutional law and the need for it to appear more consistently in law school curricula. In this casebook, Judge Sutton and his co-authors further that cause by providing a careful, comprehensive and deep set of teaching materials for a state constitutional law class. This 950-page volume begins with chapters covering some overarching matters (history of state constitutions, dual sovereignty, and theories of state constitutional interpretation), then covers the array of most significant areas in which both state constitutions and the U.S. Constitution operate (e.g., equality, due process, criminal procedure, property rights) and finally turns to state specific issues, such as provisions with no federal counterparts (e.g., “public purpose” requirements that bar the use of tax revenues for private individuals), and rules governing the organization of state governments and the amendment of state constitutions.

In this rich review, Judge Sutton takes sharp but respectful issue with Judge Posner’s characterization of judicial decision-making as “politics by another name,” contesting both normative and descriptive claims in the book and arguing that even if some of the differences between Posner and the book’s critics are semantic, that those words matter. Jeff describes Posner’s characterization of judging as profoundly an act of political policy preferences as “strong words, bound to provoke a defensive reaction.” While the review suggests that some of Posner’s language is mere hyperbole, Judge Sutton argues that considering the entire universe of judicial decision-making Posner is not only wrong, but also potentially harmful to judicial legitimacy.

Moving from the descriptive to the normative, the review is also skeptical of Posner’s advocacy of “constrained pragmatism” as a superior third way between the polar approaches towards judicial decision-making championed by Justices Scalia and Breyer. He wonders when, if ever, Posner’s articulated approach forces a judge “faced with a difficult interpretive issue, to vote against his policy preferences.” Rather than merely critiquing Posner’s thesis, the review also offers its own take on how judges decide cases. Judge Sutton argues that judges fall along a spectrum in how constrained they feel by law or precedent from separating their reaction to the facts from their vote, but that very few judges fall at the extremes of that spectrum in either direction.

The review describes a number of substantial external and internal constraints on judicial decision-making and argues that the extent of their impact is what makes the difference in judges. The external factors include the judge’s place in the judicial hierarchy, the dynamics of multi-member courts, issues of deference, the sheer size and diversity of the docket and the textual clarity of the legal source. Internal constraints include the judicial oath, the need to write a justificatory opinion and, finally, temperament. Judge Sutton gives careful consideration to each of these constraints and their effect on judicial decision-making.

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