Judge Jeffrey Sutton

Nov 10, 2019Judgment Calls Podcast


  • Judge Jeffrey Sutton talks with David F. Levi about his book 51 Imperfect Solutions: States and the Making of American Constitutional Law and the role of state courts in protecting personal rights.
  • Judge Sutton shares his inspiration for writing the book (a specific appearance as a young lawyer before Justice Antonin Scalia at the Supreme Court) and legal innovations from the 50 state constitutions that have inspired him.
  • David F. Levi and Judge Sutton discuss several important cases that show the unique interaction between state and federal courts, including San Antonio Independent School District v. Rodriguez, and how state courts have often done a better job than federal courts in protecting individual freedoms.

Additional Links


Levi: Hello, and welcome to Judgment Calls. I’m David Levi. I’m a professor of law and director of the Bolch Judicial Institute at Duke Law School.

My guest today is Judge Jeffrey Sutton. He says that ever since the landmark Supreme Court school desegregation case of Brown v. Board of Education, there’s been a recurring theme in the study and practice of federal constitutional law. That theme is that state legislatures, governors, state courts, and local governments have fallen down on the job of protecting civil rights and civil liberties. Judge Sutton thinks it’s time to reevaluate that perception.

Judge Sutton is well-qualified to lead this discussion. He is a federal judge. He sits on the U.S. Court of Appeals for the Sixth Circuit. But before that, he served as the Ohio state solicitor, representing the state of Ohio in the courts. And now he’s written a very interesting book called 51 Imperfect Solutions: States and the Making of American Constitutional Law.

Welcome, Jeff Sutton . . .

Sutton: Thank you.

Levi: . . . to the podcast series Judgment Calls, and what a wonderful book you’ve written called 51 Imperfect Solutions. It’s a provocative title. Actually, I’d be interested to know how you came up with the title.

Sutton: First of all, David, thanks for inviting me, and good for you in putting these podcasts together. As it happens, I was listening to the oral argument of City of Boerne v. Flores, a pretty important case at the U.S. Supreme Court, where I’d been lucky enough to argue amicus.

Chief Justice William Rehnquist [archival recording]: Mr. Sutton, we’ll hear from you.

Sutton [archival recording]: Thank you, Mr. Chief Justice. May it please the court. First of all, in response to Justice O’Connor . . .

Sutton: And I got a question from Justice Scalia, which is, “Mr. Sutton, do you really think this court can handle overturning a law that is this popular?”

Justice Antonin Scalia [archival recording]: Mr. Sutton, it seems to me you overestimate the sturdiness of this institution. We have here a statute unanimously passed by Congress.

Sutton: He’s making the point, “Do you really think we have the fortitude, the ability to invalidate such a popular law?”

Antonin Scalia [archival recording]: I mean, it’s one thing for this court to have a clear line which we can hide behind, and say that this is good and that is bad, but to expect us, case-by-case, to go into this kind of an analysis of whether there’s sufficient factual inquiry or what not, do you really think we can carry that much water?”

Sutton [archival recording]: First of all, the unanimity . . .

Sutton: And my response to him was, of course, number one, you have the duty, but number two, if you do invalidate the law, there will be 51 RFRAs to replace it.

. . . that there shall be 51 RFRAs when all is said and done. The states aren’t going to stand idle. My boss is not going to stand idle after the argument I’m making today if it prevails. I can promise you that. The states are doing a great job when it comes to free exercise clauses.

So there’ll be more national RFRAs, 50 state RFRAs, and are you really that worried that states will under-protect religious liberties?

I don’t think there should be a concern about under-protection.

The analogy in the book is not, of course, RFRAs, but the reality that, in this country, we have 51 constitutions, not one constitution. And the other important point that I think we forget and, perhaps, under-appreciate in our colleges and law schools, is that the guarantees we care the most about, free speech, equal protection, due process, not only appear in the U.S. Constitution. They all appear, in one way or another, in all 50 of our state constitutions.

Levi: It’s not just that there are 51. That’s an important point. It’s that we’re imperfect, and just to think of the Supreme Court as having the only reservoir of perfection or knowledge is really a mistake, and sets a standard for the court which is impossible for it to meet. There’s a message here of, I would say, judicial modesty through the book.

Sutton: Yes, very much so. The guarantees we care the most about tend to be written in very general language: unreasonable searches and seizures, due process, equal protection, free speech. It would’ve been pretty difficult to know exactly what those words meant even at the time they were ratified, but 200-plus years later, with entirely new disputes, new technologies, even originalists disagree with each other about some of these things. The idea that any one interpreter should have a corner on this market just really doesn’t make sense.

The language, the problems we judges face in dealing with the general language, really lends itself to different approaches. And my view is we should not run away from that. We should embrace it, and just as we have 50 state laboratories of experimentation in the state legislatures, I think we should embrace the idea of 50 state high courts interpreting these general guarantees. One, to account for the fact that no one is perfect. If you’re dealing with imperfect solutions, why would you want one? Way better, it seems to me, to have a couple options. And, by the way, all of this could be very helpful to the U.S. Supreme Court, at a time when perhaps we’re asking a little too much of them. It might be useful to have a few more players, whether it’s lower federal court judges or state supreme court and state appellate court judges, participating in this market of ideas, interpretation, problem solving. Let’s try to find a way to make this work in the best possible way.

The greatest Supreme Court case in U.S. Supreme Court history is, of course, Brown. It helps to solve a really complicated and terrible chapter, Jim Crow, in American history. It’s easy to think that the lesson from Brown is that the U.S. Supreme Court can fix all of our future problems, and I’m willing to accept that they will fix some of them, and we’re going to be really glad they’re there for some of them, but I’m not that confident they can fix all of them. I think they’re just too complicated and too difficult, and it’s dangerous for us to ask a government body to do something that perhaps they really are not equipped to do.

Levi: Let’s go back a little bit to the beginning, because we jumped into the middle of it. You’ve written a book. Here you are, you’re on the Sixth Circuit Court of Appeals. You’re a federal circuit judge. You did have this background in state litigation, because you were the Ohio solicitor, and you’ve written what I think is just a marvelously interesting and, if I may say, entertaining book about our state constitutions. And the big takeaway is, “Gee, this is a body of extremely important law, and yet, it’s understudied and underused.”

Sutton: It’s worth mentioning how I came across this. Most law schools do not teach state con law. My law school did not teach it, so I learned about this in a “baptism by fire” situation when I was state solicitor. As I tell my students at Ohio State and Harvard who, in my state con law classes which I now teach, I could teach a semester-long class about state constitutional law based solely on decisions I lost in the Ohio Supreme Court, under the Ohio Constitution. I found myself realizing, “Why are we not paying more attention to this?” These were very consequential cases: school funding, school vouchers, tort reform, criminal procedure.

And what really was head-snapping about the experience was, to compare what I had experienced as a state court litigator to what I had learned in federal con law, which is that the states are the villains, the U.S. Supreme Court’s the hero, and you really can’t trust courts to enforce counter-majoritarian guarantees. Here I was, seeing this happen in case after case. In a way, it is as simple as American basketball. It has never happened in American basketball, down to third-grade rec league, that someone was awarded a two-shot foul, two chances to score a point, and the person took just one shot.

And yet, every day, at least every workday, and I would say in every state court in the country, you have litigants who have a client with a problem, either with a state prosecution criminally, or a state or local law they don’t care for, and they’re choosing just to take one shot. And it’s always just the federal free throw. It really does make you wonder if American basketball players are smarter than American lawyers. It just doesn’t make any sense.

Sometimes, by the way, people are doing this in areas, criminal procedure’s a very good example, where the case law’s really not that good for the client. There’s some really tough U.S. Supreme Court, say, Fourth Amendment exclusionary rule decisions that do not help the client, and yet, every state in the country protects against unreasonable searches and seizures in one way or another. You would think it would be very much in the client’s interest for that state lawyer to raise the second claim. It took a while for us to get here, and it may take us a while to get out from where we are, but to me, it’s really worth doing. It’ll be good for the clients. It’s the right thing for the lawyers, and I ultimately think it’s the right thing for American constitutional law.

Levi: I was at a professional association meeting, and one very distinguished lawyer and university president had the misfortune of being mugged while we were there. He told me later, he said, “They took my pocket Constitution.” And I said, “Well, of course they did . . .”

Sutton: They’re going to need –

Levi: ” . . . we’re in Philadelphia!”

Sutton: – I was going to say, “They’re going to need it.”

Levi: Yes, and I think it was Justice Kennedy, or it was one of the justices, who told me that when he happened to see a crowd of people outside of the [National] Archives, and it was a day on which the Constitution was being taken out and was going to go on tour. It has this magic to it, but your point is so well taken.

Sutton: I don’t want to . . .  just to be clear, I embrace that. We do venerate the U.S. Constitution and, to a certain extent, the U.S. Supreme Court, and I would say it’s because both deserve it. Decisions like Brown, some of these landmark decisions that we’ve all come to agree were very much the right thing, even if they were very brave and bold at the time. But we do know, in American history, there have been slips: Dred Scott –

Levi: There were terrible slips.

Sutton: – Buck v. Bell, Korematsu


Sutton: And Plessy. One hope is that we keep the U.S. Constitution on the pedestal on which [it’s] on, and I think we improve those odds if we share a little bit more, this constitutional interpretation. Maybe give the U.S. Supreme Court justices a few more data points before they have to make these winner-take-all rulings. It really can help continue where we are with venerating the court and the Constitution if we have the State Supreme Court justices more in the mix.

And the other thing I would say though is these aren’t mutually exclusive. I really feel we’re not fair to state courts and the role they play in American justice. The last year for which you could count this, there were 84 million cases filed in state court. The comparable figure in all of the federal courts was 360,000. There’s something a little funny about our focus on the federal courts when the state courts are doing so much of the work.

That seems dangerous to me. Sometimes, you want good lawyers to want to go on these courts. I think the more we take pride in, respect state courts and state constitutions, the more we increase the odds we’re going to have a lot of good judges in both places. And we’re going to improve, optimize the decision making both places. I worry about a world in which we really focus on just one side of it. I think you run the risk that you’re not optimizing, and you’re maybe running the risk of making mistakes.

Levi: I’m reflecting on the fact that there was a time, maybe in the 19 — let’s say, ’60s and ’70s, maybe even earlier, ’50s — when the state courts in the private law areas were very bold. Product liability and that kind of –

Sutton: Justice Traynor, right?

Levi: Traynor in California, and there were others around the country who were very big figures and were having a big impact on the development of law, and I’m wondering why, whether if or why, it didn’t carry over to the constitutional field. Maybe it’s because the Warren court coincided, and there was just so much going on with that that they had enough to do.

Sutton: Yes, I would say two things. One thing is that this is our fault in the way we talk about constitutional law, because in truth, pre-1960s and ’50s, there were some really good state court decisions, including Justice Traynor. For example, the Loving v. Virginia case. The leading case is a California Supreme Court’s decision overruling anti-miscegenation laws and so forth. We just don’t teach that enough, so that story’s been lost to time. The part that I agree with is, we have these innovative state court judges in the teens, ’20s, ’30s, ’40s. I would say in con law and in the common law. Can we say the same thing the last 30 years? And I think that’s a fair question. I think that’s a fair point.

I’m not sure I know the answer to that. I wonder, my hypothesis would be that the U.S. Supreme Court in the ’50s and ’60s, but particularly the ’60s, was so innovative. There was criticism, particularly at the time, but by the verdict of history, most of those decisions have become a settled part of our American norms. I think one thing that grew out of that was to start to think more of federal courts and the U.S. Supreme Court as our innovators, and I think that’s unfortunate, because first of all, they don’t get common law cases. They’re not going to be able to innovate there.

And you’re so right to point out that some of the greatest jurists in American history made their name in the state courts: Cardozo, Holmes, Traynor, Shaw. Just really fabulous judges, and one thing that gives me an awful lot of optimism about state constitutionalism and state courts is the number of really fabulous lawyers going in the state courts right now. I’m excited actually about this. I think people are realizing what an important role that is to play, and it’s also slightly connected with the growth of the solicitor general phenomenon.

Levi: In the states? In the states, solicitor general.

Sutton: Yes. New Hampshire became the 40th state to have a state solicitor general position. When I was state SG of Ohio in the ’90s, there were a handful of them, and it was not treated the way the U.S. SG office was treated, as a focus of upheld litigation, filing amicus briefs, really engaging in issues of law. That world has changed so much in 20 years, and so what’s happening is these really good lawyers are going into state SG offices as either the SG or deputies, seeing state courts, seeing state constitutions, really enjoying that experience, wanting to stay in public service. And they’re going on the state supreme courts.

The Georgia Supreme Court right now, they have so many absolutely first-rate people. I think they’ve got at least two on the Trump shortlist. They ought to have four or five. I’m an optimist. I think you’re going to see a lot more of that, and the more you see of that, the more we’re going to really want to read those decisions and say, “Wow, that’s a really thoughtful approach to this problem.” I think you’re going to see the U.S. Supreme Court engaging more with them, which obviously raises the profile of the state supreme courts.

Levi: In his book, Judge Sutton delves into four cases that show complex interactions between state and federal courts. One is about school funding. In 1973, San Antonio Independent School District v. Rodriguez came before the U.S. Supreme Court. The argument, many of you know, was this: Since Texas Public Schools were funded by local property taxes, students on the poor side of town were receiving a different education than students in more affluent areas. Does this violate the 14th Amendment’s equal protection clause? The U.S. Supreme Court said no, that there was not a constitutional right to equal funding among public school districts in Texas. But Judge Sutton notes that, in the decades since, many state supreme courts have come to different conclusions under their own state constitutions.

Sutton: The stakes of that case are really hard to overstate. I really think of it as the bookend case to BrownBrown lowers racial barriers, mercifully, to public schools. But lowering those barriers doesn’t mean much if we still have some segregation in fact, which unfortunately we did then and we still do. Where we have urban communities that are primarily Hispanic or African American or an immigrant group here, and there’s a real problem if that’s a poorer school district, and they’re getting a very different public education than a suburban school district 10 miles away.

That really cuts against the American notion of everyone having an equal shot in life to do whatever they want to do in this one life we have. It’s really hard to overstate the stakes of that case. Our former boss, Justice Powell, writes the majority decision in a 5-4. It’s really a judicial restraint decision. Keep in mind, this court had decided Roe v. Wade two months earlier, so it wasn’t a court unwilling to experiment with new ideas. I think what probably motivated the five in the majority was just the discomfort of ultimately becoming a national school board over thousands of school districts. And most importantly, thousands of school districts with very different sets of circumstances, very different histories, very different sets of state laws, very different forms of taxation for raising revenue for the public schools.

I just think that seemed like a bridge too far for them. Justice Marshall, the winning advocate in Brown, he knows the stakes. He writes this anguished dissent, and you can just feel the pain as he’s writing this, thinking, “Oh my gosh, how much is Brown really going to mean if we are not going to equalize between poor and rich school districts? Particularly if there’s a correlation with the poor school districts with this minority population or that minority population.” It’s a really powerful dissent.

That looks like it’s the end of a story, looks like it’s an unfortunate bookend to Brown, diminishing the effect of Brown. And what’s fascinating is what happens in the 45 years after in the state courts. It’s partly a state legislative story. There’s some state legislative innovations. One of the best parts of the story is that the very remedies the plaintiffs were seeking in Rodriguez, which was a form of equalization, is something that every state went to. Some through state court decisions, some through legislation, so the actual remedy sought in Rodriguez was ultimately achieved.

Not the next day, unfortunately, but it did happen. And better than that, as I well know, I defended the Ohio case, they did a lot more. In Ohio, it had to be a $35-50 billion effect on school funding in the state, with huge equalizing components. The most visible difference is the fact that a lot of these public schools have been built in the ’20s, ’30s, and ’40s. In the rural parts of Ohio, they just didn’t have the money to fix them up or rebuild them. These basically were rebuilt across the state, so it’s really quite spectacular.

Are there still problems? Of course, there are still problems, but that is a story that, to me, shows, one, the U.S. Supreme Court is not the only protector of our civil liberties and of equity and equality. And number two, the provocative question in that story is, “Is it possible the Rodriguez plaintiffs won by losing?” That by shifting the spotlight to the states, more might’ve been done for that cause than could have been done by the U.S. Supreme Court. God only knows the answer to that question.

I will say, one supporting point of that is the Texas Supreme Court. Rodriguez comes out of San Antonio, it’s a Texas case. The Texas Supreme Court is one of the leaders to constitutionalize the issue under the state constitution, so they were actually one of the early actors and early leaders in this area, which is a nice story. I realize we don’t always have the luxury of time, and there probably were generations of students that did not get the education they should’ve gotten, and that’s the other side of it. That’s the side of not nationalizing right away that is always hard to swallow, but I do think it’s certainly a complicated story, and I think it’s a story –

Levi: It’s an interesting story.

Sutton: Yes.

Levi: You make the point that there can be this federalism discount. You go to the Court and the Court has to come up with a national solution, but the court will say to itself, “Gee, such a big country, it’s so varied. We can’t set the bar too high, because so many of our local communities won’t be able to meet it.” Whereas a state might be able to go higher, in effect, and I think there’s another point in there, too. My own view is that it’s always best in very profound ways if responsibility and decision-making authority are unified. Nobody likes to be told what to do, but if they come up with it, it’s their own, and they own it, then, great things happen. That’s also part of this story.

Sutton: To me, sometimes, the most important question in con law, unfortunately the most neglected question in con law, is who decides. Sometimes we have multiple decision makers, and that’s fine. The downside of multiple decision makers is you blur the lines of accountability. What happened after Rodriguez is there was no doubting where the spotlight was. It was on the states. Either nothing was going to happen, in which case the states were responsible, or the states were going to shoulder the load.

One danger of splitting accountability where the U.S. Supreme Court is involved, the state courts are involved, is you can each point fingers at the other. And I do think there would’ve been a federalism discount had Rodriguez gone out the other way, because one of the most important issues in school funding is, of course, money. No court is going to require a tax increase, not even at the state level. You really can’t do that. It’s a cat-and-mouse game with the court and the legislature.

That was never going to be a game the U.S. Supreme Court could play with 50 legislatures. That was a game that the Ohio Supreme Court could play, quite effectively, ultimately pretty fairly, with the Ohio legislature to, I think, good effect. I think most people would say it ended up in a good place, even if there were winners or losers along the way.

Levi: We’re going to talk about three other cases now. In 1927, the U.S. Supreme Court rejected Carrie Buck’s claim that the 14th Amendment prohibited the state of Virginia from sterilizing her against her will. But it’s less known that many state courts had wrestled with the exact same issue first and, from the perspective of today, did a much better job. We’ll also talk about a World War II case, the Gobitis case, involving Jehovah’s Witnesses who were expelled from school because they couldn’t salute the flag, which was not allowed by their religion. The U.S. Supreme Court ruled that students could be compelled to salute the flag, but then three years later, in Barnette, the Supreme Court overruled the Gobitis case. And at the same time, the state courts were looking at these same issues in their state constitutions.

But first, we’ll talk about the exclusionary rule in the Fourth Amendment, which is a criminal defendant’s right to exclude evidence obtained through an unreasonable search and seizure. In 1914, the U.S. Supreme Court appeared to adopt an exclusionary rule for federal law enforcement. In 1961, in Mapp v. Ohio, the Supreme Court extended that rule to the states, even though roughly half of the states had already adopted the rule for themselves. Judge Sutton has some questions about whether Mapp was a net gain or a net loss for criminal defendants.

SuttonMapp, to me, is super complicated because, on the one hand, it looks like a beautiful federalism story, right? The state courts are the innovators on developing exclusionary rules. Some for, some against. The U.S. Supreme Court adopts an exclusionary rule solely for federal prosecutions but doesn’t nationalize it. It takes 75 years before Mapp. That’s a nice patient . . .  That should be the kind of story I should love in terms of the U.S. Supreme Court letting the states experiment, learning from the experiment experience, and then making the choice, “Should we nationalize?” That’s so good in so many ways. You learn from what happened. You lower the resentment factor, because a lot of states will already have the rule, so it’s not going to effect them. By 1961, half the states had an exclusionary rule under their state constitution, so that cuts in half the backlash problem.

Levi: Then you see whether law enforcement and the prosecuting agencies can live with this.

Sutton: Yes, so in so many ways, that is a pro. I really compliment Mapp. But the story after ’61 is really complicated. For the legal realist, the legal realist thinks judges have a really hard time separating their policy preferences in a case from what the Constitution means. If that’s true, there’s a real danger to connecting the remedy of exclusion to whether there’s a Fourth Amendment violation, because you’re going to have a lot of really tough cases, very bad murders. You are not going to want to exclude evidence, and the reality is, Fourth Amendment law has not been a growth industry.

There are more negative decisions cutting back on protections than growth decisions, and so sometimes you wonder if the exclusionary rule or Mapp affected that. But you’re right that the provocative question is, “Did Mapp do more to hurt criminal defendants over the long haul than help them?” And I suspect if one could really calculate this, which I don’t think you can, you would see that it was a net victory. And I’ve talked to state court judges, including state court judges and state criminal lawyers from the ’60s, who said, “Jeff, this made a difference in a lot of cases, and it really did affect things.”

To me, I think the fairer way to think about it is, do be careful what you wish for. Do be careful about nationalizing too quickly. Do pay attention to the risk that what you take up may be brought down, and if state court’s lockstep with the U.S. Supreme Court, that’s very dangerous, because that’s what can lead to net decreases in our rights protection. But I fundamentally think, I want people to read that chapter and just say, “Oh, before we nationalize, we need to think about this a little more carefully.”

Levi: It’s a complicated story.

Sutton: It is a complicated story.

Levi: And even in Leon, which the way I would defend Leon is it’s less about losing valuable evidence in any particular case and it’s much more about creating the significant incentive to get a warrant. Get a warrant. That’s what the message is to law enforcement, and I think law enforcement has gotten that message, frankly. It’s pretty rare that you read about a case where they just didn’t bother to get a warrant.

Sutton: Law enforcement, when one asks to speak with them, you notice that they love Miranda and they love warrant requirements, because they’re pretty clear rules.

Levi: They like rules.

Sutton: And they’re told, “If we follow them, you’ll stay out of court,” and they like staying out of court.

Levi: They do. They don’t want to have to make a lot of judgment calls when a case is unfolding so quickly. That’s a very tough thing to expect of people. That’s your second area. Then your –

Sutton: Well, let me just though, just to interrupt, but on the Leon thing, half the states did say no to Leon, so that does prove . . .

Levi: They did.

Sutton: And one of the real criticisms of state court judges is that 90% of them are elected, and if you’re running for election, can you really be trusted to protect a criminal defendant, in a world in which people like to be tough on crime? Which, I guess, is a big generalization. Well, here we have a story where the state court judges, that didn’t matter to them.

Levi: Yes, and I think that’s a very fair point. Because you know you’re setting yourself up for attack ads that say, “This person went free, and that person went free on a technicality, because you decided that this perfectly reasonable U.S. Supreme Court case doesn’t apply in our state.” That took courage, I think, judicial courage.

Your third area is the coerced involuntary sterilization, which is a very –

Sutton: What were we thinking?

Levi: I mean, just a very sad corner of American history. It’s a story most law students know, because the great Justice Holmes was on the . . .

Sutton: Had a bad day.

Levi: He had a very, very bad day, and he compounded it by this statement that three generations of idiots is enough or . . .

Sutton: Imbeciles. Three generations of –

Levi: Imbeciles. Imbeciles. These laws –

Sutton: He even has . . . he says three generations of imbeciles is enough, which I don’t quite get. It’s “are.” I think he had the grammar wrong. It was a bad day.

Levi: It was a bad day. As you point out, number one, they weren’t imbeciles, because –

Sutton: Not one of them, not one of them.

Levi: Because if there’d been procedural protections, the court would’ve been in command of the fact that these may have been troubled people, but they weren’t . . .

Sutton: They didn’t have real mental disabilities. There was no –

Levi: They did not have mental disabilities, and even now, we would never use terms like that to describe our fellow human beings, so it was a very, very sad case. But it’s in the book because . . .

Sutton: It is a cautionary tale story about, “Be careful about the next great innovation.” This was an establishment-led movement, progressive era. “We’re going to use science, and we’re going to try to fix some problems.” They were all very well-intentioned people, but a really disastrous experiment. The point of that story is, if you ultimately put all your faith in one branch of government to protect your civil liberties, eventually you’ll be disappointed, because that is what happened in Buck.

And it’s more than that, because that’s an example of where our assumption that the federal courts are better protectors of individual liberties has not always been true, and that was . . . Buck comes out in 1927. It’s an 8-1 decision. The leading progressive, Justice Brandeis, joins it. The leading conservative, Chief Justice Taft, joins it. Probably the greatest Supreme Court Justice Holmes writes. Only Justice Butler dissents. He doesn’t explain why. He doesn’t write out his dissent, and it’s an across the board rejection of the idea that the 14th Amendment prohibits the state from involuntarily sterilizing somebody.

Part of the story that no one knows, and this is really one of the main reasons for writing the book, is the good work the state courts had done before 1927. There had been six state court decisions. Five of the six get it right by the verdict of history, several on state constitutional grounds, and the New Jersey Smith decision is really terrific. You’re really just mystified how the U.S. Supreme Court would not have read that decision and thought, “This is right. This is the right way to look at this problem.” Justice Holmes doesn’t mention a single one of these lower court decisions, including the Smith decision.

The other thing about that story that’s really troublesome to me, and probably is the biggest reason I’m running around talking about this so much. It’s what happened after 1927. Holmes writes this Madison Avenue endorsement for eugenics. It works. About 15 more states pass eugenics legislation. No one goes back to court to challenge it. They couldn’t go back to court and challenge it under the 14th Amendment, because Buck v. Bell had rejected that claim, and the supremacy clause requires the lower federal courts and the state courts to follow that ruling. Nothing prevented someone from going back to state court and relying on the state constitutions to invalidate these involuntary sterilizations.

What’s so puzzling about this is they had decisions on the books that had done the right thing. In other words, there was a path to victory already charted, and no one went back to state court to follow it. The eugenics movement does not die through courts, state or federal. It ultimately dies through discrimination laws that prohibit discrimination against the disabled. And, of course, eugenics was incompatible with those kinds of laws, happily. It starts as a legislative story, it ends that way, but it’s a real head-scratcher that we Americans didn’t realize we could use our state constitutions after 1927 to stop these eugenics laws in their paths. That one, I can’t explain.

Levi: Okay, and then the fourth story, which is riveting, truly, is the treatment, really the persecution of the Jehovah’s Witnesses during World War II, which we can, from our vantage point of security now, we can look back on and see how terrible that was.

Sutton: I started writing that chapter because [of] a friend of mine in Bexley, Ohio, who’s now a dean at Northwestern, Kevin Boyle, who wrote Arc of Justice. It’s a great book. His father was a police officer, and he told me the one time he really felt in fear of his life as a police officer was breaking up these rallies and protecting Jehovah’s Witnesses from the persecution they faced in the late ’30s and ’40s, but particularly once war had broken out. And that Jehovah’s Witnesses, as a matter of faith, were unwilling to salute the flag. They thought that was incompatible with . . . they wouldn’t salute anything other than God, was their way of thinking about it. This was a secular symbol, so it was purely a faith-based point, but that was a hard thing for Americans to understand.

They also weren’t willing to go along with the draft. They thought that was incompatible with their faith as well, so that was a double whammy for them, and there really was . . . it’s a shameful history, frankly. One of the great things about Barnette is that that has become part of our American cultural constitutional norm, that we look after minorities. We try to look after minorities, when we’re doing our best, but that’s a story of persecution.

The message from that chapter, unfortunately, is you can’t trust federal or state judges, sadly. I hate to say that as a judge. It’s an existential point for me, but they both fell down on the job, probably because the war was unfolding, and it was very easy to worry about the way that war was going to end. It was very easy to be very patriotic. You don’t win wars without patriotism, but both the state court decisions and Gobitis did not seem to appreciate the free speech and free exercise norms in our state and federal constitutions.

Albeit, they were citing them at a tough time, perhaps explaining Korematsu as well. But happily, it’s a story that turns around very quickly, and that’s really admirable. At the federal level, three years. At the state level, a year or two. It’s really early ’40s, you start to get some really terrific state court decisions. One of the things that, to me, is fun about the book, and I really want to lift up state court judges that I just don’t think we’re appreciating enough.

Everybody knows about the Justice Jackson Barnette decision, and the fixed stars, and there’s no orthodoxy in American political life. You need to read some of those state court decisions. They are really powerful. They are just as rhetorically powerful. They’re just as heartfelt. They’re just as persuasive. My one slight criticism of Barnette is I wish Justice Jackson had quoted a few of them. No one did better than he did. He wouldn’t have had to worry. His ego would’ve been intact.

He wasn’t going to have to share too much glory, but I’d like to see a little more of that, because it’s important. And those state court judges deserved it. Justice Lehman had this wonderful decision. It’s so powerful, and it just reflects so many . . . And that’s not a New York constitutional norm, and that was what was at issue in the case, but the way he speaks is as an American, an American constitutional norm, and much broader than that.

Levi: Kind of a missed opportunity, if you think about it. The nation was at war, and you would want the opinion to have as much support of its position really out there [crosstalk].

Sutton: Yes, the whole country is behind . . . Yes.

Levi: Yes. The court moved from seeing the issue as one of free exercise to one of free speech, and that seems to have cracked it open for the court. They were just asking a different question and getting a different answer as a result. I don’t know how this . . . were the state courts approaching it already as a free speech question?

Sutton: Both. Both, but you can understand why they went down the free exercise road initially, because that’s what it looked like.

Levi: Of course.

Sutton: Fundamentally, from the perspective of the Jehovah’s Witnesses, from the children being pulled out of school, this was about their faith. But to Justice Jackson’s credit, and I think he deserves a little credit here, he appreciated, “Wait a second. I get why the Jehovah’s Witnesses had this right. I get why we shouldn’t be doing this to them, but what about someone without a faith? What about someone who is doing this for free speech reasons?” And that’s pretty compelling as well, so good for him, good for the court. The honest answer is I think one or two of the state court decisions was starting to look at it as free speech, but this may be one where the U.S. Supreme Court deserves a little more credit.

Levi: It’s an important perception. You chose four great areas, and I’ve got to say, I truly enjoyed your take on those cases in reading those sections. Can we talk about some of the areas you didn’t touch on? What would the abortion story look like had you written a chapter on that? Were the state courts actually active in that area before Roe?

Sutton: I don’t know as much about that, but yes. The answer is there were some state court decisions. The famous part of Roe is that it gets to the court pretty quickly. In other words, that’s the Justice Ginsburg criticism. A little more patience would’ve allowed state legislative adjustments, state court adjustments, and lowered the temperature. I think she’s right about that. I’m not sure too many people disagree with that point. The real answer is there wasn’t a lot of opportunity for state courts, but I think that is what likely would’ve happened.

I obviously thought about writing a chapter on abortion. One anxiety is it’s not a topic that most people approach with an open mind. I was very concerned to keep people listening with what I said.

Levi: I think that’s fair.

Sutton: But the reality is, it’s a topic that’s highly relevant here, because it’s not so much a prediction about what the court will do with Casey and Roe. It’s the obvious point that the protections do not seem to be growing. That would be a pretty hard case to make over the last 10 years. And if they’re not growing, that means there are gaps. That means that’s what state courts can do, and that’s fine.

Levi: It may depend too on whether you can tolerate variation around the country on some of these questions. Could gun rights be different, let’s say, in Wyoming than they are in New York state? And I think from just a pragmatic point of view, it wouldn’t be foolish to think, “Gee, we could have a country . . .”, put the Constitution to the side for a moment. You might say, “Look, in the rural states, there are much more persuasive reasons for having guns in the home, guns in the car.” There’s less law enforcement. There are more critters, and you’re more self-reliant. And the opportunities for accident or tragedy are maybe somewhat reduced.

Having the same gun policy, let’s say, in a highly urbanized state might not make much sense, or it might make less sense. It might propose other risks. The same might be true of cultural things, too. Things that seem terribly upsetting to people in one state might seem normal in another state. And then the question would be, “Well, can the country tolerate that difference or not?”

Sutton: The way I’d like to think about it, and this, to me, cuts to the heart of what’s going on right now, is I would prefer to see a world in which citizens and lawyers are focused a little more on fixing problems in their neighborhood, their city, their community, and their state. And once they’ve fixed a problem, perhaps through a state constitutional ruling, have the courage of their convictions to let other states adopt that approach if they think that’s appropriate.

The world I think we’re living in right now is a very different world. It’s the people of Ohio inclined to tell the people of Wyoming how to live their lives. And then, oddly enough, being resentful when the people of Wyoming want to return the favor and tell us how to live our lives in Ohio. You can’t have it both ways, so I think interest groups have a little bit to do with this, because if you’re an interest group, one stop shopping makes a lot of sense, whether it’s Congress or the U.S. Supreme Court.

For them, uniformity is always the preferred approach, which of course does not allow variation to account for regional social norms, regional political norms, regional economic norms, regional demographic, geographic norms. It’s just funny to me. We like winner-take-all, particularly when we win, but we’re seeing a lot of resentment, because you’re going to lose half your battles. You have to ask yourself if that’s a great game.

Levi: It’s hugely complicated, I think. Take the gay marriage case that the Supreme Court came out with, because I know some of the people that were not just involved in that litigation, but also in strategizing around this very issue. There was a big debate within the community of people that were hoping to get favorable rulings on gay marriage as to what the best approach was. There was a group that felt that this should be put on state by state, and it should be either a constitutional amendment or it should be statute, and that that was the winning approach.

And there was a fair amount of progress actually from their point of view, being made state by state. They were not in favor of rolling the dice and seeing what the Supreme Court would do. They thought that was just way too risky, and they were prepared to battle for hearts and minds. But there were other groups that said, “Go for it.” They don’t all see it the same way, and I think the groups that were working on the ground in the state were very disappointed, actually. Of course, they were elated with the ultimate result, but I think they were extremely worried and felt that a lot of these slow efforts they were making had been put at risk.

Sutton: It’s obviously a federalism story. The U.S. Supreme Court says no to there being a 14th Amendment right to same sex marriage in 1972, and it’s only in the state courts that this gets going. It’s Hawaii, it’s Vermont, and then it’s the 2003 Massachusetts Goodridge decision. And then you get state legislation, state constitutional amendments, more state court decisions. And then, in Obergefell itself, Justice Kennedy points out the dialogue that had been unfolding. It really is a federalism story. There’s just no doubt about it.

You ask different people, you’re going to get different answers as to whether it was the best way to proceed. On the one level, it’s the Brown story. This is the Brown decision for someone who is gay, and one can certainly understand why one would have a lot of joy about that decision. You could argue also there was a fair amount of patience between the 2003 decision in Massachusetts and ’15 in Obergefell, but one would have to be sitting under a rock to say there wasn’t some resentment with the 2015 decision.

The other thing to just keep in mind, which is just very complicated, is what’s actually the real goal here? Is the real goal Supreme Court decisions where at least five members of a life-tenured court recognize a right, or one where communities are forced to recognize and come to grips with an issue? The one downside about constitutionalizing is you don’t force that other conversation. And we’ll never know exactly how that would’ve played out. Well, no. That’s not entirely true. We have anti-discrimination laws, those debates, and there’s still plenty of litigation in that area, so I guess there is still a chance for community-by-community resolution.

Levi: A lot of these questions are just so interesting, and they’re hard to be definitive on, because you can come up with so many hypotheticals where you would say, “Look, I have to acknowledge that.”

Sutton: It’s hard, hard being a judge, as you know.

Levi: It’s hard being a judge.

Sutton: Almost as hard as being a dean.

Levi: That’s why we call it Judgment Calls, absolutely. Well, look. It was so great to have you here. I truly mean that.

Sutton: Well, thank you for inviting me, and thank you so much for reading the book and engaging me in the book. I’m very grateful for that. Thank you very much.

Levi: We’re very lucky to have a person like you on the bench. I really mean that. Thank you.

Judge Jeffrey Sutton serves on the United States Court of Appeals for the Sixth Circuit. His book is called 51 Imperfect Solutions: States and the Making of American Constitutional Law. I’m David Levi, director of the Bolch Judicial Institute at Duke University. We will be back soon with another episode of Judgment Calls. Thanks for joining me.

Voice: Judgment Calls is produced by the Bolch Judicial Institute at Duke University. Find us online at judicialstudies.duke.edu.

Have a suggestion? Submit your idea to our suggestion box.