Vol. 10 No. 4 (April 2000) pp. 281-283.
RESPECTING STATE COURTS: THE INEVITABILITY OF JUDICIAL FEDERALISM by Michael E. Solimine and James L. Walker. Westport, CT: Greenwood Press, 1999. 184 pp.
Reviewed by Daniel R. Pinello, Department of Government, John Jay College of Criminal Justice, City University of New York.
Lesbian and gay Americans, self-identified as six percent of voters in the 2000 California presidential primary (11% in the state's Democratic contest), know the value of judicial federalism -- the sharing of judicial power between the 50 states and the federal government. Last December, in BAKER v. STATE (1999), the Vermont Supreme Court held that its state constitution required Vermont to extend to same-sex couples the common benefits, protections, and security flowing from marriage. In response, the state legislature is taking the historic step of granting "civil unions" to same-sex couples, conferring about 300 legal benefits and obligations on the newly de facto spouses. In 1993, the Hawaii Supreme Court, in BAEHR v. LEWIN (1993), ruled that the exclusion of same-sex couples from the state's marriage statute constituted sex discrimination under the Hawaii Constitution and was subject to strict scrutiny. As a result, the state legislature passed the Hawaii Reciprocal Beneficiaries Act, a less comprehensive grant of legal benefits to same-sex couples than in Vermont, but nonetheless significant. Moreover, although the United States Supreme Court, in BOWERS v. HARDWICK (1986), upheld the constitutionality of state consensual-sodomy statutes criminalizing lesbians and gay men as a class, the appellate courts of eight states (among the 25 not decriminalizing consensual sodomy by legislative action) have declared their sodomy laws unconstitutional or otherwise inapplicable to private consensual activity among adults.
In RESPECTING STATE COURTS: THE INEVITABILITY OF JUDICIAL FEDERALISM, Michael E. Solimine and James L. Walker argue that all Americans should cherish judicial federalism. The authors' thesis is that "judicial federalism is essential to the health, and even to the existence, of a successful system of power sharing, and it has been consistently undervalued in that role" (p. 6). Solimine and Walker make a compelling theoretical case in support of their thesis by canvassing a plethora of germane topics: whether judicial federalism expands or contracts rights; whether parity exists between federal and state courts in the implementation of federal rights; how well state courts adjudicate federal civil causes of action (the "new forum shopping"); how state courts interpret their own state constitutions (the "new judicial federalism"); how state courts deal with "special problems" (race, the death penalty, and habeas corpus); and whether judicial federalism is an alter ego of ideological division. Indeed, in marshaling the arguments and literature informing the debate over judicial federalism, the book is a tour de force.
Yet, Solimine and Walker also train their sights on a more formidable -- and
Page 282 begins here
elusive -- quarry. Their introductory chapter notes that, "[w]hile judicial federalism has been frequently explored in the legal literature, ...it has suffered from a relative lack of attention by political scientists and other non-legal academics" (pp. 5-6). Accordingly, they believe that "there should be more empirical work on the operation of judicial federalism" (p. 9) and announce their objective "to measure the values of judicial federalism and to inform our measurement by social science research" (p. 10). Since Walker is a political scientist and Solimine a law professor who was Walker's student in college, the authors have the credentials to meet the empirical challenge.
Two chapters report original research. The first responds to critics (most notably Neuborne 1977) of state courts and judges as ignorant of, or hostile to, individual liberties by analyzing about 1,000 federal and state cases between 1974 and 1980 adjudicating claims based on the First Amendment, Fourth Amendment, and Equal Protection Clause of the Fourteenth Amendment. Although outcomes in criminal cases were virtually identical (33.9% of claims were upheld in federal courts and 30.5% in state courts), federal courts sustained one-third more civil claims than state courts (44.6% versus 33.2%). The authors conclude, nonetheless, that their "data show no clear, across-the-board hostility on the part of state courts to claims of federal constitutional rights" (p. 50).
The second empirical chapter's data are more modest, gauging the appeal of the new forum shopping by comparing federal- and state-court treatment of Section 1983 cases in just one year (1987). Summarizing the findings, the authors observe that, "[i]n both systems plaintiffs find it difficult but not impossible to prevail at the trial level, though they meet with more success on appeal" (p. 79).
The balance of the book's empirical investigation draws on other scholars' research, which sometimes is not helpful to Solimine and Walker's thesis. For example, in the chapter discussing race, the death penalty, and habeas corpus, the authors attack the perception that judicial federalism is "a handmaiden of racial prejudice" (p. 127). Yet, faced with empirical evidence that state-supreme-court justices in states with competitive judicial elections are more likely to uphold death sentences (Brace and Hall 1997), Solimine and Walker acknowledge that the death penalty "poses an unfortunate exception to our generalization that state judges are not bullied by majoritarian pressures" (p. 118).
On occasion, the book verges on schizophrenia. For instance, although the final chapter asserts "[t]here is little systematic evidence that the election of judges is compromising the fairness or inventiveness of the state and local systems" (p. 133), the authors close with the anomalous proposal that state judges "be selected and retained by merit criteria combined with some version of retention elections" (p. 142). More jarringly, despite the book's oft-repeated invocation of empirical investigation of the operation of judicial federalism, and despite their own empirical offerings, Solimine and Walker conclude that, "It may be asked whether our argument is fundamentally empirical or normative. Of course all knowledge is empirical since we have only that knowledge we gain through observation using our senses. Our vision for America depends on, literally, our vision of America. But what is generally referred to as strict empiricism is hardly possible in this area of inquiry. The application of the social sciences to law and politics is helpful but
Page 283 begins here
limited" (p. 140). These inconsistencies may be the product of compiling three law review articles into a monograph or, more fundamentally, of an incompletely harmonized collaboration. Nevertheless, the contradictions detract from the book's otherwise powerful theoretical analysis. Also disturbing is that, in 142 pages of text, I counted at least 40 copy-editing errors -- an average of one every four pages. This may be symptomatic of more widespread trends of publishing carelessness. However, proofs place the ultimate responsibility for accurate presentation squarely on authors. Do scholars today truly have so little pride of ownership? Despite its shortcomings, nonetheless, RESPECTING STATE COURTS, as an exhaustive enumeration of arguments in the debate over judicial federalism, is essential reading for anyone concerned about the viability or desirability of our dual court system. Moreover, in the unlikely event, after finishing Solimine and Walker, there is any doubt state courts are vitally important to Americans, just ask a lesbian or gay friend.
Brace, Paul R., and Melinda Gann Hall. 1997. "The Interplay of Preferences,
Case Facts, Context, and Rules in the Politics of Judicial Choice." JOURNAL
OF POLITICS 59: 1206.
Neuborne, Burt. 1977. "The Myth of Parity." HARVARD LAW REVIEW 90: 1105.
BAEHR v. LEWIN, 74 Haw. 645, 852 P.2d 44 (1993).
BAKER v. STATE, 744 A.2d 864 (Vt. 1999).
BOWERS v. HARDWICK, 478 U.S. 186, 106 S.Ct. 2841 (1986).
Copyright 2000 by the author, Daniel R. Pinello.