For lawyers, the first Monday in October is opening day. That's when the U.S. Supreme Court returns from its summer break and begins hearing new cases. Like the start of any good sports season, commentators feverishly speculate about who will triumph and who will fall short in the coming term. The stakes are high because we tend to think of the U.S. Constitution—and the U.S. Supreme Court—as the exclusive source of our liberty and property rights.
Don't make that mistake this year. There are 51 constitutions in this country and 51 supreme courts — and all of our highest courts, federal and state, can vindicate our American rights, all year long.
Consider first the role of our state courts in protecting the rule of law. They play a bigger part in our legal system than most people realize. Think about these numbers. In 2016, 84.2 million cases were filed in the state courts while 367,937 cases were filed in federal courts during a similar period. That's about 230 state cases for every federal case.
Now consider the role of our state constitutions. Every state and local law in this country is limited by the federal constitution and the relevant state constitution. That subjects each misbegotten state and local law to a two-shot opportunity. The aggrieved individual can rely on the U.S. Constitution and that state's constitution to invalidate it. And the individual needs to win just once to invalidate the law. Just as we would scratch our heads if a Villanova basketball player opted not to take both shots after a two-shot foul, we should scratch our heads when a Philadelphia resident refuses to take a second shot awarded under the relevant state constitution.
That second shot is of particular importance for individuals and groups that lose at the U.S. Supreme Court. At that point, that's all they have. This feature of American federalism means that a defeat in front of the nine justices of the U.S. Supreme Court is not the end of the game.
Better yet, the constitution of the Keystone State may protect rights that the constitution of the United States does not. The wording of the two constitutions frequently differs. The history undergirding each guarantee often varies. And the precedents construing each of them sometimes point in different directions. Only an individual semi-interested in fixing a problem would ignore the Pennsylvania Constitution and the role of the Pennsylvania Supreme Court in independently construing it.
Whenever the U.S. Supreme Court issues an opinion, most Americans focus on just one question: Who won?
I would add two others: What's next? Who else can decide? Think about two of last term's biggest cases. In one, Gill v. Whitford, the U.S. Supreme Court continued to stay on the sidelines when it comes to political gerrymandering. That leaves plenty of room for the states to operate, whether through state court decisions under state constitutions (as the people of Pennsylvania have seen firsthand), state legislation, or statewide initiatives.
Carpenter v. United States offers a different way in which the state constitutions can play a role. That decision addressed whether the government's acquisition of cell-site records amounted to a search that required a warrant under the Fourth Amendment of the U.S. Constitution. At the same time Carpenter nationalized rights in this setting, the U.S. Supreme Court did not occupy the field, leaving plenty of room for state courts to customize other protections for their residents in the years ahead, as new technology relentlessly generates new debates about constitutional freedoms.
We ignore state constitutions and state courts at our peril. In the words of Leonard Levy: "[A] society reveals itself in its law and nowhere better than in the reports of the decisions of the state courts. The state reports, are, however, the wasteland of American legal history. … [The work of state judges] is undeservedly unstudied. So long as that condition exists, there can be no history of American law, and without it, no adequate history of this nation's civilization."
As the long days of summer finally give way to the briefer days of fall, a new term of the U.S. Supreme Court awaits. This year, like every year, the court cannot rule for everyone. Even as it allocates disappointment to half the litigants in its cases, it has no say about the rest of this country's constitutions. There are 51 constitutions in this country and 51 high courts to enforce them.