State Courts Take Brennan's Revenge 

Any day now, five unelected public officials in Montpelier, Vt. will decide if the institution of marriage in that state can include members of the same sex. This, despite a marriage statute that refers to "bride," "groom," "husband" and "wife." Nothing, even words whose meaning should be clear, is free from doubt in a courtroom, and no argument is too preposterous for a lawyer to make with a straight face. And unlike other public officials, judges increasingly do not consider themselves bound to follow the law.

Thus, in a case argued on Nov. 18, the Vermont Supreme Court is considering whether to overturn the state's marriage law based on a vague clause in the state constitutiom prohibiting

   Rule of Law

By Mark S. Pulliam

private "emoluments" to particular individuals. If the appellants in Baker v. Vermont prevail, Vermont's high court will join the stampede of other state supreme courts resting controversial rulings on tortured interpretations of state constitutions.

Judicial activism is no longer confined to the federal courts. Thanks to the inspiration and encouragement of Supreme Court Justice William Brennan, state courts are forging new frontiers of judicial lawmaking. In contrast to the conservative electoral trend that has produced GOP governors and GOP control of Congress, courts all across the country remain to the left of the U.S. Supreme Court, regularly overturning legislation with which they disagree.

This disturbing trend dates back to 1977, when Brennan, the architect and primary force behind the Warren Court, wrote a seminal article in the Harvard Law Review entitled "State Constitutions and the Protection of Individual Rights." Brennan expressed grave disappointment that the Supreme Court had recently ended the phenomenal epoch in constitutional law in which the Warren Court had applied the Bill of Rights to the states through the 14th Amendment, a development that overturned century-old precedents and imposed breathtaking and lasting changes on our society. But by the mid-1970s Republican appointees to the court had curbed this activist regime, and Justice Brennan was relegated. to writing dissenting opinions. He felt robbed.

Then he had an idea: What if the state courts picked up the torch and continued the activist legacy of the Warren Court by interpreting their own constitutions to expand individual rights? In his article, Brennan suggested that "state constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law." The key to Brennan's vision was for state courts to circumvent the new conservative majority on the Supreme Court by resorting to constitutional decision making that could not be reviewed and reversed under the Supremacy Clause.

Brennan's clarion call for state supreme courts to carry on the tradition of the Warren Court unleashed a force that continues to gain momentum. State court activism in the guise of "independent state grounds" now surpasses the example set by Justice Brennan and his colleagues during the heyday of the jurisprudential revolution of the 1960's. For example, on November 23, the Georgia Supreme Court overturned by a 6-1 vote the state's anti-sodomy statute under the privacy provisions of the Georgia Constitution, even though the U.S. Supreme Court upheld the same statute in Bowers v. Hardwick in 1986.

In a controversial 1997 decision, the California Supreme Court overturned a stat statute requiring minors to obtain parental consent or court approval before having at abortion, based on the privacy provisions o the California Constitution, despite numerous U.S. Supreme Court precedents upholding such laws. The Hawaii Supreme Court recently interpreted the state constitution to authorize same sex marriages, a result the voters promptly and overwhelmingly overturned by constitutional amendment.State court activism is not limited to social issues. A year ago the Illinois Supreme Court struck down that state's sweeping civil justice reform legislation, declaring that limits on damages, discovery and joint and several liability violated the state constitution. While the decision in Best v. Taylor Machine Works established, a new high water mark in this area, it wasn't the first example of judicial disapproval of tort reform legislation using "independent state grounds." A 1997 study by tort law scholar Victor Schwartz concluded that in the preceding decade "over sixty state court decisions have used provisions in state constitutions to nullify attempts by state legislatures to reform America's tort law."

In hundreds of other cases across the country, state supreme courts have issued decisions using "independent state grounds" to impose heightened standards for law enforcement, overturn the death penalty, require public funding of abortions, invalidate public school financing schemes, grant public access to private property, recognize a constitutional right to possess and use drugs and many other policy goals never even dreamed of by the Warren Court. By any objective measure, state court activism is out of control-judicial imperialism of an awesome scale.

Brennan's 1977 article was truly prescient. As he predicted, "independent state grounds" are the perfect vehicle for judicial activism, for several reasons.

First, state appellate courts decide far more cases and issue far more opinions ban do the federal appellate courts. In terms of sheer volume, there are many more opportunities for activism. Second, since state supreme courts are the ultimate arbiters of state law, state courts aren't bound by federal precedents. Federal court precedents establish a constitutional floor; state courts can further diminish the political rights of the executive, the legislature, and the people, but they cannot increase them. Third, state court decisions resting on "independent state grounds" are completely insulated from review and reversal by the federal courts, even by the U.S. Supreme Court; the finality of their decisions undoubtedly emboldens state supreme courts.

Fourth, and finally, state constitutions, unlike the U.S. Constitution, tend to be lengthy, poorly drafted and haphazardly revised documents, full of idiosyncratic terms susceptible of a contrived interpretation by a result-oriented judiciary. In a prevailing academic climate that fosters judicial activism, more and more state courts decide cases based upon their personal predilections and current intellectual fashions. Instead of being limited to a few liberal hotbeds such as California, activist rulings are now the norm and judicial restraint is the exception.

Justice Brennan, the ultimate liberal partisan, would be pleased. Brennan may have lost his activist majority on the Supreme Court, but he gained 50 junior Warren Courts in the process. Call it Brennan's revenge.

Mr. Pulliam is a San Diego attorney.