Thankful for Judicial Disharmony

Anthony Sanders · November 25, 2020

As we get ready to offer our thanks in this most thankless year, I wanted to note my thanks for something that often gets missed: that we don’t all agree, or rather that judges don’t all agree.

What brought this to mind was a decision of the Colorado Supreme Court on Monday (Nov. 23, 2020), People v. Lee. The facts aren’t important for what I have to say, but very briefly the court analyzed whether it violated the Colorado Constitution’s equal protection guarantee to charge a suspect with a crime when the same conduct could have qualified as a different crime with a lesser penalty. Applying its caselaw, the court concluded that this did violate the state constitution.

The dissent, however, vehemently disagreed, arguing that this use of equal protection was contrary to what the U.S. Supreme Court has said about the federal constitution’s Equal Protection Clause in a case called Batchelder, handed down in 1979, and also contrary to what the large majority of other states have said about their own constitutions. The dissenting judge implored the others on the court (unsuccessfully, of course) to reconsider Colorado’s “equal protection island on which this court is currently marooned.” He argued that there is nothing different about the text or history of the Colorado Constitution to justify a departure from the other courts’ interpretations of similar language, and that “Forty-one years after Batchelder was handed down, isn’t it time for us to finally get in line?”

Whatever the merits of the U.S. Supreme Court’s and other state courts’ view versus Colorado’s view of this particular issue (I haven’t thought much about it and it’s not an area we at the Institute for Justice practice in), the dissent’s “get in line” language rubbed me the wrong way. I think that’s entirely not how state courts should think about interpreting their own state constitutions.

As we at the Center for Judicial Engagement have emphasized many times before, state constitutions can offer different protections from the government than the federal constitution can. Often this is, most obviously, because they are written differently from the federal version, and that different text needs to be taken seriously. And, often it’s because a constitutional provision was adopted at a particular time with a particular history in mind, and that history points toward a meaning that might differ from how the federal courts have interpreted similar language in the federal constitution. For example, I’ve written about how whatever your view of the Ninth Amendment (and the U.S. Supreme Court’s view has been to pretend it doesn’t exist), state constitutional versions of the Amendment—the “Baby Ninths”—protect substantive individual rights that are judicially enforceable.

The dissent in People v. Lee grants that in those situations there’s something to be said for a state court diverging from the U.S. Supremes. But in this case, goes the argument, there’s no reason for a difference and therefore the court should “get in line.”

There’s an unmentioned presumption there that unless you have a state-specific reason for not following the herd, the herd is correct. But the whole point of our big, federal, country is that that’s often not true! Sometimes the herd is wrong, and the minority, or even the lonely individual, is right. The point isn’t to have uniformity for the sake of uniformity, the point is for judges to come to their own independent judgment on what the law means. And if one court disagrees with what others have said, it should say so. Perhaps, over the long term, the majority view will turn out to not be so “correct” after all. In that case it’s good that the minority view sticks around.

Several times I’ve heard the argument made that if a state court is analyzing a state constitutional issue and the U.S. Supreme Court has looked at the same issue under the federal constitution, the state court should follow along because “who are they” to think they’re better than the justices in Washington, D.C. But I think many of those justices in D.C. would readily admit that the same question can be asked the other way round. In truth, all of our judges on all of our courts are capable of engaging with our constitutions and coming to different opinions. And the best way to protect liberty is not for them all to fall in lockstep for the sake of lockstep.

So on this Thanksgiving let’s be thankful for judges each engaging in their own way, and not being afraid to disagree. It’s that disagreement that allows for the pluralism in our constitutional system and the freedom we give thanks for in the first place.

Anthony Sanders is the Director of IJ’s the Center for Judicial Engagement.