May It Please The Courts: State Supreme Courts and the Enumeration of State Constitutional Rights

Abstract

As a response to the U.S. Supreme Court’s ruling in Dobbs v. Jackson, which overturned decades of federal protection of the right to abortion, advocates began filing a wave of lawsuits in state courts, arguing that the right also exists under state constitutions. In recognition of the potential that state high courts may serve as guardians of constitutional rights, this thesis proposes a theory of why and how state supreme courts recognize new liberties when they do. As existing frameworks to conceptualize the role of state supreme courts in relation to state constitutions are limited within the legal field, this thesis sits at the juncture between law and policy, testing the applicability of legal theories through the policy lens to further understand how state supreme courts behave when safeguarding constitutional rights. First, by conducting qualitative analysis on three case studies of state courts ruling on the right to abortion, marriage equality, and the right to education, this thesis concludes that for a state supreme court to enumerate a new constitutional right, there must be clear public support, especially in the context of elected courts. This correlation between the affirmation of a new liberty and public approval confirms the legal theory proposed by Professor Jonathan L. Marshfield, which purports that state courts are created to protect majoritarian rights. Second, through the substantive analysis of these court rulings, findings also illuminate the extent to which state courts have felt more empowered to construct their constitutional interpretation independently from the influence of federal jurisprudence. The thesis finds that, through time, state constitutional interpretation tends to decouple from federal doctrines, resulting in either more expansive state interpretations of provisions that both exist in the federal and state constitutions or, more recently, new constitutional doctrines that are unique to the states. As the empirical findings support the legal theory called “New Judicial Federalism,” this thesis contends that advocates and state jurists should continue to be open to arguing for and creating new state constitutional doctrines as independent guardians of fundamental liberties, separate from the influence of the federal courts and the federal Constitution. To ensure robust protection of constitutional rights at all levels of the American federal system of governance, the thesis offers a series of recommendations, ranging from reframing constitutional arguments made in state courts to borrowing constitutional analysis tools from other jurisdictions instead of the federal courts.