Essays on State Constitutional Adjudication (Part 2: Anna Mumford and Bronson Stephens)

This is the second of the two-part series of essays examining the role of state courts in constitutional adjudication and the approaches those courts take in such adjudication, especially their treatment of U.S. Supreme Court decisions on similar issues.

Decisional Approaches to State Constitutional Claims

By Anna R. Mumford

Anna Mumford, a third year student at Albany Law School, is the Managing Editor for Business & Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies.

Read the Essay (click link or see below)

State High Courts Taking Their Rightful Place

By Bronson C. Stephens

Bronson Stephens, a third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society.

Read the Essay (click link or see below)

Decisional Approaches to State Constitutional Claims

By Anna R. Mumford
Anna Mumford, a third year student at Albany Law School, is the Managing Editor for Business & Production for the Albany Government Law Review and a co-Executive Editor of International Law Studies. (See her ILS publication: Genocide In Cambodia?A Look at the ‘Protected Groups’ in the 1948 Genocide Convention, Jan 21, 2012.)
She has studied international law at the courts in the Hague, and she has worked as a legal associate with DC-Cam in Phnom Penh, Cambodia, an NGO which provides evidence to the Extraordinary Chambers in the Courts of Cambodia (ECCC).
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.


There are three different, basic approaches state supreme courts take in analyzing state constitutional claims—the dual reliance approach, the primacy approach, and the supplemental approach.  Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Texas L. Rev. 977, 983 (1985).

State High Courts Taking Their Rightful Place

By Bronson C. Stephens

Bronson Stephens, a third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society.
This essay was written for the State Constitutional Adjudication Seminar, Spring 2012 semester.
Bronson has been published previously by the Center (See, e.g., Bankruptcy’s (Relatively) Even Keel at the Court: An analysis of nine justices’ voting patterns, 1992 – 2000, Feb. 22, 2012.)

Three state court opinions examined in the light of articles written by Pollock, Utter and Bonventre reveal some of the many ways state courts are stepping up to claim their place as the shapers of state law and individual freedoms.

The first article, Adequate and Independent State Grounds As A Means of Balancing the Relationship Between State and Federal Courts[1] written by Stewart G. Pollock, and the second Swimming in the Jaws of the Crocodile[2] by Robert K. Utter, speak to the importance of state court involvement in the development of American law; both federal constitutional law and state constitutional law within the individual states.[3]  The two articles by Pollock and Utter, along with the third article Changing Roles,[4] by Vincent M. Bonventre, mention the present threat, ever since Michigan v. Long,[5] that the Supreme Court will overrule a state court’s protection of its citizens.

Essays on State Constitutional Adjudication (Part 1: Steven Sacco and Dana Vitarelli)

This is the first of a two-part series of essays examining the role of state courts in constitutional adjudication and the approaches those courts take in such adjudication, especially their treatment of U.S. Supreme Court decisions on similar issues.

Constitutional Guardianship in State Courts

By Steven Sacco

Steve Sacco, a dual degree student, is in his 3d year student at Albany Law School while pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare.
Read the Essay

The Interplay Between State and Federal Courts

By Dana Vitarelli

Dana Vitarelli, a third-year law student at Albany Law School, is currently the Research and Writing Editor and Business Manager for the Journal of Science & Technology.
Read the Essay

The Interplay Between State and Federal Courts

By Dana A. Vitarelli
Dana Vitarelli, a third-year law student at Albany Law School, is originally from Monroe, New York. She graduated magna cum laude from the State University of New York at Geneseo, majoring in Psychology. While at law school, she has worked at the United States Attorney's Office for the Northern District of New York as well as Albany Medical College. Dana is currently the Research and Writing Editor and Business Manager for the Journal of Science & Technology and Chair of the Domenick L. Gabrielli Appellate Advocacy Competition for the Moot Court Editorial Board.
This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.


Stewart Pollock discusses that the basic principle of the relation between state and federal courts is that the two judicial systems are together responsible for protecting and upholding constitutional rights.[1] He says that respect for state court decisions by the United States Supreme Court is “essential to the continuing vitality of the dual judicial system.” He goes on to state that while the outcome of a case may vary based on the forum in which it is decided, state and federal courts are ultimately joined in a partnership with the purpose of protecting individual rights and liberties. It is paramount for each system to have independence and respect for one another while still working together in order to form an effective partnership. It is through this partnership that deference by the United States Supreme Court concerning state court decisions, primarily based in state law, has become a vital part of federal jurisprudence.

Pollock continues with this idea and says that by respecting these judgments, the United States Supreme Court regards state courts as “partners in the federalist system.” This respect is extremely evident when the outcome of a case would have differed using the federal constitution. The landmark case of Michigan v. Long removed any ambiguity in the United States Supreme Court's previous approach to determining the independence of a state court decision.[2] According to Long, a state court that discusses federal law must make a “plain statement” asserting that it used the federal law for guidance only in order to avoid review of its decision.


Robert Utter  expands upon Pollock’s “partnership” theory and discusses the fact that state courts have made “great contributions to the growth of federal constitutional law.”[3] He mentions the fact that state courts have interpreted their state constitutional provisions long before the United States Supreme Court examined its federal counterparts. He also states that the Supreme Court has recognized the “importance of the variety, breadth, and depth of state court analysis … in its own decisions.”

Constitutional Guardianship in State Courts

By Steven Sacco

Steve Sacco, a dual degree student, is in his 3d year at Albany Law School while pursuing a Masters in Social Work at the SUNY Albany School of Social Welfare. His focus is public interest law, specifically in the areas of immigration and family law, and in the civil rights and international issues that intersect with those areas of the law.

This essay was prepared for the State Constitutional Adjudication Seminar, Spring 2012.

Part I: Changes in Constitutional Guardianship

As Stewart Pollock and Vincent Bonventre point out, throughout the mid-20th century, particularly during the 1950’s to 1970’s, the Supreme Court of the United States provided protection to civil liberties and rights that the state high courts would not.[1] But in recent decades the pendulum has swung in the other direction and state high courts in their review of constitutional issues now act as the guardians of fundamental rights and liberties.[2] This shift has drawn attention to the ways in which state courts are in a unique position to protect civil rights and liberties, and conversely to the ways in which the Supreme Court of the United States is challenged in this regard.

For example, Robert Utter argues that state review of federal issues has contributed to the substantive development of federal law, and that the state courts are in a special position to expand certain rights and liberties the federal courts cannot or have not.[3] State court decisions have shaped federal law in many areas of substantive rights and liberties because the Supreme Court has often looked to state decisions to inform its own opinions on these issues.[4] 

Conversely, Utter also argues that the federal courts are restricted in at least three ways that state courts are not. First, that the U.S. Supreme Court is often reluctant to rule on issues in deference to the state in the interests of federalism; an institutional restriction the state Supreme Court does not have – something Utter refers to as “underenforcement” of the constitution.[5] Second, and this follows from the first, state courts do not need to worry about their decisions affecting the entire country, and thus can afford to exercise much less caution in making their decisions.[6] Finally, if the Supreme Court is underenforcing the constitution, it follows that the law is not providing liberty to the full extent that the document allows.[7] States, unencumbered by the first issue, have the ability to enforce the Constitution to its fullest potential.

However, the argument that the State high courts have some greater institutional capacity for developing and protecting civil rights and liberties seems to have been thwarted by a Supreme Court decision now nearly 3 decades old. Since 1875 the Supreme Court would decline review of a case if the state court based its judgment on an adequate and independent state ground; as long as such a ground were mentioned in the argument, the Supreme Court would presume the case off-limits for review.[8] But this changed in 1983 with Michigan v. Long.