As fans of state constitutions keep pointing out, one wonderful thing about the American constitutional system is that an American has two levels of constitutional protection from state and local government: the U.S. Constitution and the state constitution of the state where he or she resides. In other words, there are two “ways to win” when bringing a constitutional lawsuit. Because of this, many scholars, advocates, and even judges, have implored litigants to make state constitutional claims in addition to, or as an alternative to, federal ones.

Despite that information being out there (awareness of state constitutions is much higher than it was 30 or 40 years ago, among lawyers at least), plaintiffs still rarely raise state constitutional claims in federal court. Perhaps the biggest promoter of state constitutions, Judge Jeffrey S. Sutton, lamented this fact in his book 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018), where he claims that during his (by then) 15 years as a federal appellate judge he “recall[s] just one instance in which the claimant meaningfully challenged the validity of a law on federal and state constitutional grounds.”

Judge Sutton doesn’t provide an answer for why lawyers don’t bring state constitutional claims in federal court (and nor should he, as that isn’t the focus of his book), but suggests that better education might be the answer. Professor Michael Morley of Florida State University College of Law, however, has now provided an answer in a review of Judge Suttons’ book (forthcoming in Constitutional Commentary; a draft is available here). And it’s a solid answer. But as someone who has practiced public interest law and decided whether to bring state claims in federal court, I write this post to supplement Professor Morley’s review a bit and give some additional, practical reasons why lawyers don’t bring more state constitutional claims when choosing a federal tribunal.

Professor Morley lays out the huge procedural hurdles that regularly frustrate federal courts from assessing state constitutional claims. One is Pullman abstention, an extremely confusing (and often contradictory) doctrine the Supreme Court has created, which, essentially, admonishes federal courts to abstain from ruling on questions of state law—including questions of state constitutional law—if the answers are uncertain. This often means a litigant must first go to state court and have state claims adjudicated, and then go to federal court for federal claims. Most any litigant will cut their losses and simply bring the federal claims in federal court, but, in any case, this means the state claims aren’t heard in federal court. Another hurdle Professor Morley discusses is Eleventh Amendment sovereign immunity, which protects states, state agencies, and state officials (although not municipalities and municipal officials) from being sued. In the context of state constitutions, sovereign immunity not only makes it difficult to sue for damages, but also even to sue for injunctive or declaratory relief. For federal claims seeking non-monetary relief, the doctrine of Ex Parte Young allows for suits against state officials for violations of the federal constitution (usually, but not exclusively, the Fourteenth Amendment). However, the Court has refused to extend Ex Parte Young to state constitutional claims. This doesn’t mean that state constitutional arguments against states and state officials never come up in federal court, but it does mean one first needs a waiver of sovereign immunity or some quirky reason it doesn’t apply. And even if a plaintiff can get around Pullman abstention and sovereign immunity, Professor Morley reports on a few other procedural tricks that federal courts have at their disposal to avoid state constitutional issues. If you’re someone interested in bringing a state constitutional claim in federal court, his analysis is an absolute must read.

There’s even more, however, to why more state constitutional claims aren’t brought more often in federal court. And they’re very practical. I lay out two of them here, but I’m sure there are others as well.

The first is the most practical of them all: money. Lawsuits aren’t cheap. Unless a lawsuit is purely funded by a public interest group, like my employer the Institute for Justice, the availability of a contingency award or attorney’s fees is going to loom large in how to structure the lawsuit. For a private attorney, even if she’s taking the case pro bono she’s going to be a lot more willing to litigate if there’s some possibility of an attorney’s fee award from the government. And for attorneys whose clients pay them, both the client and the attorney are going to, of course, carefully think through financial considerations.

Those considerations heavily tilt in favor of federal claims. In federal court, at least for most claims against state officials, municipalities, and municipal officials, 42 U.S.C. § 1983 and § 1988 are massive financial data points. Section 1983 provides a cause of action against municipalities and municipal officials (subject to other procedural barriers, such as qualified immunity, that we won’t get into here) for violations of federal constitutional rights, including for money damages. Section 1988 provides for attorney’s fees to plaintiffs who succeed in Section 1983 cases, even if the lawsuit was only for injunctive or declaratory relief. These two sections of U.S. Code provide a strong incentive for attorneys to risk a lawsuit for clients who couldn’t otherwise afford one.

For state constitutional claims in federal court, however, there’s no similar laws. Very few states (if any) have passed legislation allowing for money damages for violations of their own constitutions, and precious few state courts have ruled that damages are available for state constitutional violations. States and state courts like sovereign immunity just as much as federal courts. And even for attorney’s fees, there is no federal law that provides for their award when a plaintiff prevails on a state constitutional claim in federal court (and very few states allow for this even in state court, but that’s a different story). Thus, if you’re a civil rights attorney and you’re looking to bring a case in federal court, adding an extra state constitutional claim may give you another “way to win,” but it will be a way that (1) cannot result in any additional money damages, and (2) will result in hours of research and argument that won’t be rewarded in any attorney’s fees petition. In fact, it might weigh against bringing a state claim at all, because if a federal judge ruled for the plaintiff on the state claim but not the federal (via a baby-splitting judgment that judges sometimes do), that would mean no attorneys fees at all. That doesn’t mean someone wouldn’t bring it because they’re looking for an injunction by whatever method possible, but it can’t help but be a significant consideration.

The second additional reason why more state constitutional claims aren’t brought in federal court is knowing your audience. If you’re bringing a federal constitutional challenge there’s a good chance you’re already pushing the envelope. This is unfortunately inherent in constitutional litigation, because of the culture of judicial abdication when it comes to enforcing constitutional commands against the government. Perhaps your claim is very well established and it’ll be an “easy” victory (although that’s never assured when you’re suing the government). But, given the deference courts give to the government across most areas of constitutional law, more than likely you have a hard battle ahead of you. You’ll be asking a federal judge to move the law a bit more in your client’s direction from where the U.S. Supreme Court has already done so. That shouldn’t be a big ask, but as a practical matter it is.

While a lawyer is already trying to overcome that burden, it’s understandable for her to not also lay on a similarly tough state constitutional claim. Further, as these things go, the federal court will likely only reach the state constitutional claim if it denies the federal claim. And the ultimate interpreter of the law—the relevant state’s highest court—isn’t even in the chain of appeal for the case (federal courts are supposed to look to a state’s supreme court on how to interpret state law). Thus, the federal judge, in essence, has to think “what would the state supreme court think of this fairly novel state constitutional claim, where I’ve already denied the parallel federal claim.” Even if the state constitutional claim is quite different from the federal claim, with unique state constitutional language, it’s not an ideal situation for a strategic litigator.

Thus, for very practical reasons, financial and tactical, lawyers (even fully funded public interest lawyers!) are wary of bringing state constitutional claims in federal court. That doesn’t mean it doesn’t or shouldn’t happen, but it adds yet another layer, on top of Professor Morley’s analysis, for why Judge Sutton hasn’t seen many, and won’t see many more (on the federal bench, at least).

That doesn’t mean litigating state constitutions isn’t very important! Many of these issues could be rectified through civil rights legislation or new Supreme Court rulings. But for now it all means that litigation of state constitutional issues is generally going to be in state court. Every state has some mechanism for bringing a state constitutional claim for injunctive or declaratory relief (usually the Uniform Declaratory Judgment Act), and state courts are often pleased to see novel claims under their own constitution. And, of course, state courts will consider state constitutional arguments made by defendants to state prosecutions. Lawyers can bring and defend these cases, they just won’t be reimbursed for their services like they can be for federal claims. Rightly or wrongly, most federal and state judges (Judge Sutton being an obvious exception) seem to feel state claims best belong in state court.

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