Who Decides?
2022-03-14 · Guest: Jeffrey Sutton (Chief Judge US Court of Appeals) · 52:26
State constitutions and federalism in American law
Bob Zadek interviews Judge Jeffrey Sutton about his book Who Decides?, exploring the vital role of state constitutions and federalism in American law. They discuss why the identity of the decision-maker often matters more than the outcome of a case and how states serve as laboratories for constitutional rights.
Topics: Federalism, State Constitutions, Judicial Selection, Supreme Court, Laboratories of Democracy, Foot Voting, Plural Executive
Speakers: Bob Zadek, Jeffrey Sutton
Introduction to Judge Jeffrey Sutton [00:17]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. We are always the show of ideas, never once the show of attitude. Thank you so much for sharing your time with us this Sunday morning.
This morning, it is truly a privilege and truly an honor for me to welcome to the show Honorable Jeffrey S. Sutton. Judge Sutton is the Chief Judge of the United States Court of Appeals for the Sixth Circuit. The Court of Appeals, as you know, is the second-highest federal court in the country. It’s an appellate-level court. Judge Sutton was nominated by George W. Bush and confirmed by the Senate in April of 2003. He had the privilege, the honor, and what must have been clearly a career highlight—Judge Sutton clerked for Supreme Court Justice Lewis Powell and for Supreme Court Justice Antonin Scalia.
Jeff has agreed to join us this morning to discuss the second of two books. We’ll learn in a second whether there’s a trilogy, whether there’s a third book coming. But in 2018, Jeff wrote 51 Imperfect Solutions, subtitled States and the Making of American Constitutional Law. The book was well-received. It had a very interesting point of view. It reminded us in our country—and I dare say we needed reminding—there are such things as states in our country. We often forget. We will discuss that a bit later on in the show. Jeff has just published—published last year, actually—his second book as a follow-up to 51 Imperfect Solutions. He has written Who Decides?, subtitled States as Laboratories of Constitutional Experimentation, a bit of a nod there to former Supreme Court Justice Louis Brandeis. Thank you, Jeff, for joining us this morning on the show. And of equal importance, thank you so much for writing the book.
Jeffrey Sutton: Well, thank you for inviting me. It’s an honor to be with you.
The Importance of “Who Decides?” [02:59]
Bob Zadek: Now, Jeff, your book is entitled Who Decides? question mark, and then subtitle States as Laboratories of Constitutional Experimentation. So, just so the audience can get into the swing of things, when you ask “Who Decides?”, I’ll do the somewhat impolite responding to a question with a question, if you’ll permit me. And on the topic, on the question of who decides, Jeff, in your book, who decides what? What is the decision that you are writing about in the book about who makes the decision? What is it that you are wondering ought to be decided? And then how do you answer the question? And we’ll drill down as to what you mean in your book after you explain to us what the subject of the decision is by category, then who have you concluded should be the deciders and why? First, what is the decision to be made, and then we’ll figure out who should decide it.
Jeffrey Sutton: Right, right. Well, it’s an honor to be with you, Bob. You know, I guess if I had to put my finger on one thing that I think is not terrific about our political discourse today, it’s that we tend to focus on what an outcome of a decision is, rather than who the right decision-maker is. So if you take hot-button issues—redistricting, abortion, property rights issues—the first thing the lawyer and the citizen is going to focus on, or has tended to focus on, is: what is the outcome? What have they done? And is it something I like or dislike? And you know, that’s a very natural thing to do. In a sports game, you’re more interested in who won the game rather than who the referee was and what the calls were.
But I do think in American government, the first question, the most important question, is making sure we get the “who decides” question answered right. So sometimes the answer is the federal government, the national government should decide. Sometimes it’s the states. And sometimes it’s really the answer is something within that branch. Is it for the President of the United States, or is it Congress, or is it an agency? So the question in the title is trying to get us to focus on where to look first.
I guess the second thing I would say is I was surprised, I think it was a few decades ago, someone did a poll on knowledge of state constitutions among Americans. And I think fewer than half of Americans knew their state had a constitution. So often the “who decides” question doesn’t turn on the federal government, doesn’t turn on the federal constitution; it actually turns on state governments. And when we’re trying to figure out who decides the answers to some of our big questions in state government, the state constitution is what tells you. And so a big part of the book is trying to remind people that we have 51 constitutions, not just one. We have 51 Supreme Courts, not just one Supreme Court. And in allocating decision-making authority, it’s actually quite complicated to get that right because, if you had to put your finger on one thing the federal framers of our federal constitution really cared deeply about, it was separation of powers. Because human beings were fallen creatures, and eventually they would look after their own interests, and the way to protect us against that was to divide power as many ways as possible, horizontally and vertically.
The “Second Shot” of State Constitutions [07:04]
Bob Zadek: What caught my attention when you were just speaking a moment ago is you started answering my question by pointing out that many citizens, or most citizens perhaps, find themselves agreeing or disagreeing with a Supreme Court case. And the media contributes to this. And if the Supreme Court takes, as you identified, hot-button issues—abortion, of course, comes to mind, voting procedures come to mind—and in your circuit, the Sixth Circuit, you decided to decide a then hot-button issue of: does the federal government, CDC, have the power to stay evictions? We all remember that issue in the old days when we were worried about COVID. That was, of course, a long time ago. We worried about COVID, now we’re not.
So the point is, you commented that most engaged citizens have an opinion on a Supreme Court decision. And that issue, having an opinion on a Supreme Court decision, is misunderstood, I think, and there’s a suggestion of it in your book. It’s misunderstood in that when people—non-judiciary, non-lawyers, citizens—have an opinion about a decision, they’re not saying the decision is wrong, that is to say they reached their constitutional analysis was wrong, or the decision didn’t follow precedent. Of course they are not. They are simply commenting on the decision, right or wrong, as if it were a law. And that’s where everything gets blurred. Everybody has an opinion, it seems, on Roe v. Wade, but the opinion is never on the constitutional merits; it’s on the subject matter of abortion. So just that comment is indirectly mentioned throughout… go ahead, please.
Jeffrey Sutton: Well, no, it’s a perfect way of getting to the key theme of both books. You know, it’s a very natural reaction to hear that the U.S. Supreme Court has said no. They’ve put up a stop sign and they’ve said that the federal constitutional claim you’re bringing does not work. And it’s a natural reaction of that decision to think, “Oh, the Supreme Court must disagree with me on the underlying policy debate.” So if the issue is abortion, if the issue is partisan gerrymandering, if the issue is taking of property, if the issue is free exercise of religion, when we hear the U.S. Supreme Court has done something, we see the headline and we say, “Oh, they must not care about protecting free exercise. They must not care about the right to get an abortion if one wants. They must not care about extreme partisan gerrymandering.”
And that’s quite wrong. If that were true, they would prohibit the states from addressing those same problems. And that is the whole point of the book. When the U.S. Supreme Court puts up a stop sign and says no, we can’t grant relief, the citizen has two options. Option A is to embrace unhappiness and leave it at that and assume the only way to protect the right they care about is through the U.S. Constitution and the U.S. Supreme Court. Option B is to do what all citizens have a right to do, which is use their state constitution to protect them from what seems to be an overbearing state or local law, an overbearing or overzealous state or local criminal prosecution.
And you know, Madison in Federalist 51 made the point that in American federalism, we have a double security. We have two chances to stop a state or local law. So when the U.S. Supreme Court decides that the federal constitution doesn’t protect a certain right, it’s only saying that with respect to the federal constitution. It’s not saying we disapprove of local government and local courts protecting that right. And I think that’s the thing that there’s quite a bit of confusion about. And I don’t blame the journalists on this front; it’s hard enough to explain one feature of one U.S. Supreme Court decision. They can’t be expected in 400 words to lay out how American federalism works. But I do think it is the reason I wrote these books, because I am trying to explain that we do have two sources of rights, two sources of protection if we’re unhappy with what our state legislature or local government happen to be doing.
So yeah, that is the idea. It’s… well, another way to put it is the basketball analogy. Instead of local traffic in a stop sign, think about it this way: when was the last time in a basketball game the referee awarded a two-shot foul to the player, the player misses the first shot and then doesn’t take the second shot? No one does that. I mean, go down to CYO basketball in the fourth grade; everybody takes the second shot. So if that seems so obvious in American basketball, why is it not obvious in American law that if the U.S. Supreme Court either does not protect it or has not yet protected a certain right you care deeply about, why not try the second shot under your state constitution in state court?
States as Laboratories of Experimentation [13:03]
Bob Zadek: In your book, Who Decides?, you remind us all that states exist as independent political units. And you complain—I think you don’t use the word complain, but it’s clear—about the apparent diminished role of state law, state legislatures, state judicial systems. You justifiably point out, remind us, comment that states have been relegated to the role of being territories. I’ve… it’s interesting, I’ve made the same observation. I often have said on my show that I live in California, and California is the California Department of the Federal Government. It’s like they’re in charge of a geographic area, but they’re just an agency, no different than any other federal agency. They get their funding from the feds, they get their orders from the feds, they’re under the control of the feds. And you point that out, you emphasize that in the book.
But the point I would offer you the opportunity to make now is: it is clearly important to you that we look upon states as, again to use Brandeis’s words and to paraphrase them, laboratories of constitutional experimentation. Now, why is it so important for the health of our country to re-elevate state political… the state institutions, the political institutions of states, to their original role? What have we lost as states have achieved diminished importance? And also, if you would, in responding, it’s so interesting to me that here you are, you are a… you are sitting on the second-highest federal court, you are a… you’re an appointed-for-life—we’ll get to “for life” because that becomes important in the conversation—you’re appointed for life, and you’re looking down, if you will, at state judicial systems and wanting them, and you want not to look down, but to look across at state judicial systems. So tell us why, what we are all losing by this de-emphasis of the importance of state political systems.
Jeffrey Sutton: Yes. Well, this is… boy, this is important. And first of all, just to start, it’s not a political or partisan point; it’s quite neutral, as proved by the fact that the Justice on the U.S. Supreme Court who’s come up with the best metaphor for talking about American federalism was a progressive, Justice Brandeis. And he had this wonderful insight that when you have a new social problem—data privacy, opioids, even features of the pandemic—no one at the outset knows the right answer. And he’s making the point that a brave state could try an experiment, and if it worked, other states could adopt it or adopt variations on it. And the other nice insight is when you’re not sure what the answer to a difficult problem is, you don’t want to experiment on 330 million Americans and 51 jurisdictions at once. You know, much better to try one state. If it works, the stakes aren’t… you know, it’s great, but if it doesn’t work, the stakes aren’t as high.
So the Brandeis… he’s referring to state legislatures as the experimenters-in-chief, and that’s all well and good. Another way of thinking about it is ground-up development of legislative ideas. If something works, we nationalize it through Congress. And I would say that is traditionally how we do things when it comes to legislation. And my question is: why aren’t we doing the same thing with the identification of new constitutional rights? What’s different about new constitutional rights in America, at least for the last 60, 70 years, it’s much more often top-down: a race to the United States Supreme Court, get a winner-take-all victory for the whole country at once. Obviously, it’s terrific if your side or your issue wins, but it can generate quite a bit of resentment if you’re on the losing side and at this point you no longer can vote on it because if it’s a constitutional ruling, no one in the country gets to vote on the matter anymore.
So what I’m suggesting is we ought to take the Brandeis model and apply it to our state courts. When we’re dealing with new debates about liberty, equality, property rights, why aren’t we letting the state courts be the first responders, use their state constitutions? And I should just stop there for a second and point out: there is no individual right guaranteed in the federal constitution that didn’t originate in the state constitutions. They came first after 1776. They were the experimenters-in-chief in writing constitutions in this country, all before the fabled summer of 1787 in Philadelphia. So it makes perfect sense to let these state courts, construing identical or similar guarantees in their state constitutions, and kind of from a ground-up perspective, see if there is a winning insight that the U.S. Supreme Court ought to nationalize.
The only other thing I would say, which is also consistent with Brandeis’s wonderful insight, is every now and then it’s appropriate not to nationalize either legislation or a constitutional ruling. And it’s sometimes the case that the problem defies one simple solution or one overwhelmingly correct solution. And when that’s true, it’s not a terrible idea to permit some variety in constitutional protection in this diverse and, you know, really large country with, you know, plenty of different cultures, sometimes reflective of whether it’s an urban, rural, or more suburban state. And so that’s… that’s really just a way of thinking about a different focus. But again, it all comes back to “who decides.” And you know, sometimes it’s really significant. You know, if you’re going to call the state of California the Department of the Federal Government, which, you know, happily is not usually the case, you know, that raises the question: when does California have authority to initiate its own ideas and when doesn’t it? And you know, I think that’s one reason why separation of powers happens to be so important. If you don’t place some limits on governments, either at the state or federal level, you start to defeat some of the great insights of our framers that separation of powers is the way to protect liberty because we avoid aggrandizing too much power in one place.
COVID-19 and “Foot Voting” [20:34]
Bob Zadek: The best example—and I’m mentioning this because it is so fresh in everybody’s mind—the best example, only because it’s so current, is of course the in-effect, in-effect national lockdown during the early days of COVID. And how we ended up over time, when states started to flex their muscles, we had… unfortunately, it was divided along Democrat and Republican; it shouldn’t have been, but it was. So we had states like Florida—well, Florida, Texas, other states—which just rejected the national approach about how to deal with the balancing the economic health and the medical health of its citizens, and they went their own way and they experimented. And it was… and all of us could see by the results that certain states simply did a better job in balancing than others, where the overall benefit to the citizens was greater in some states than in others. And from that, we could draw conclusions. We didn’t have to argue theory; we could draw conclusions.
So that was… the stakes, as Jeff has said, the stakes are so much higher when we experiment with 330 million people rather than with the population of a state or of a locality. And also, Jeff, it wasn’t expressly mentioned in your book as a reason, but it was clearly there, strongly by implication. And that is that looking to move, if you will, constitutional law decisions more to the states—in doing so, we automatically reward the citizens with freedom. If we don’t like how our state is operating, we are, as Ilya Somin has said in his book, we are free to move. We can vote with our feet—more powerful way of voting than voting at the ballot box, which is vacuous and meaningless, but voting with your feet is meaningful to you and to the state you are leaving and going to.
So Jeff, I just wanted to mention to remind our audience that what you advocate is profoundly pro-freedom. One can say, “Well, if you don’t like how the federal government is operating, you can move to Canada.” That’s… we all know that’s kind of cynical, kind of silly, far more dramatic than is necessary. The decision to move from Berkeley to Austin is a much more low-level decision than moving from the United States to another country. So your book is also a paean to freedom because by looking at state constitutions, besides the stakes being lower with experimentation failing, the reward is automatic, which is that of freedom.
State Constitutions and Direct Democracy [23:54]
Bob Zadek: Now, you comment on the book and you make, I think, many, many important points, but one that you remind your readers about is that states in their operation tend to be more small-d democratic. You point out something which I never quite thought of, strangely enough, but you pointed it out and now I will think about it, which is the difference between, in the federal level, the President is elected, but—and so is the Vice President theoretically—but everybody below the President is appointed by the President. That is called in political science a unitary executive. The states operate differently, and you prefer the state system, which is more small-d democratic. It’s an important point, Jeff, because I’ve never seen it discussed anywhere. Please explain to our listeners why you sort of look with envy at the small-d democratic or more democratic nature of most states as compared to the federal government.
Jeffrey Sutton: Well, that… that is quite a big theme in Who Decides?. And that’s that since the American founding, since separation from Britain in 1776, the federal government ultimately is still kind of locked in an 18th-century, very republican form of government where you don’t get to vote on everything. We do have, as you say, a unitary executive: just one President responsible for all criminal prosecutions and implementation of all federal laws. And what’s fascinating is while the federal constitution is really… we’ve just had one federal convention, only 27 amendments, the state constitutions, which can be amended much more easily, usually by 51%, have just constantly been amended. I mean, they’re this like archaeological illustration of American history.
So in the age of Jackson in the 1820s, 1830s, suddenly all the states decide in a populist-type way to start voting for everything. That’s when you start voting for state judges. That’s when they start dividing up the executive branch so that you can vote for a Lieutenant Governor, a Governor, an Attorney General, a head of, you know, Department of Insurance. In some states, it’s absolutely remarkable the number of people you can vote for. And ultimately, it leads to direct democracy: voting, you know, through initiatives and referenda directly for laws and constitutions.
And so one way of illustrating this is, you know, take two very different states. You would not think of Mississippi and California as twins separated at birth. And yet their two constitutions probably have more in common than either of them has in common with the national constitution. So you’re quite right to say in a small-d democratic way, the state constitutions just keep allowing more democracy. Now, I will say I’m not sure I necessarily think one is better than the other. It’s probably healthy at the federal level, particularly for national defense, to have a unitary executive. I’m not sure I’d want separately elected people deciding how to deal with national defense.
But it does lead to lots of interesting and amusing problems. There’s one from California that I quite enjoy. So California separately elects its Governor and Lieutenant Governor, which means they can be from different parties or be from the same party and be rivals. And California has a provision that says when the Governor is, quote, “out of the state,” all executive power, at least in the Governor’s office, goes to the Lieutenant Governor. I think it was 1980, Jerry Brown was thinking of running for President, and apparently he left the state for a fundraiser in D.C. And while he was gone, the Lieutenant Governor decided to fill a vacancy on the California Supreme Court. So Governor Brown comes back to the surprise that, you know, this authority he thought was his has now been exercised by the Lieutenant Governor. And ultimately, the California Supreme Court said that the Lieutenant Governor had this power, but unhappily for the person selected for the court, the Governor had authority to undo the appointment soon after he got back. So a pretty amusing story.
I’ll just say one other thing about the pandemic since everyone understands the problems we’re facing with it or have faced with it, and I think it’s a great illustration of the “who decides” question. You know, I do think there are parts of the pandemic where the national government surely did have a role, and the national constitution gives them that role. Think of coordination of development of vaccines. You wouldn’t want just one state in charge of that problem; it makes perfect sense to focus that at the national level. And so far, anyway, it looks like that was fairly successful. But when it comes to some of the other things that are just a little more complicated, you know, just compare the United States to New Zealand. New Zealand’s an island; we’re not an island. They have 4 million people, 40 million sheep. We have 330 million people, not nearly as many sheep, I’d say. But New Zealand can, you know, they can just do a lockdown and, you know, with three cases because it’s such a small island with so few people, and the stakes of the experiment aren’t nearly as high with just 4 million folks. And you know, the United States is not New Zealand. And so that’s the kind of challenge where it was useful to have variety of experiments, variety of approaches. And as you say, over time, you could see what was working and, you know, sometimes it was complicated, but it’s still very healthy to have all these options available and be able to see in real-time what’s working and what’s not.
Judicial Selection: Life Tenure vs. Elections [30:34]
Bob Zadek: In your book, again, and throughout the book, you remind us of so many facts about state and federal government and the comparison that everybody knows about but everybody has forgotten about. And you bring them to our attention in order to make one or several political points in your book. And one of them that you mentioned, of course, affects you personally, but your comment has nothing to do with that. You point out that the federal judiciary is given life tenure, and most state judges are—maybe I’m guessing less than all, but certainly most is accurate—most state judges are to some degree elected. Now, they may, once elected, they may not be elected for life, and they may have reaffirmation decisions to see if they remain in their position. Those are kind of elections, but there is a profound bias, as we know, for a sitting judge to be reconfirmed unless he’s done something to draw the ire of the voting public. So you clearly, despite the fact that you have spent your judicial career at the federal level, you certainly seem to have an opinion about elected versus appointed judges. And once again, of course, it is again your nod to direct democracy, the will of the people, populism, and principles such as that. So tell us why you seem to have some bias or some respect for the system of an elected judiciary versus A, appointment, and B, appointment not only appointment, but life tenure.
Jeffrey Sutton: Right. This is such a difficult problem: how do you select judges? You know, one answer to the point is it’s fair to say that the more a court does—a given state court or the federal courts in general—the more one of them does, the more it seems fair for the people to care who’s on the court. And I think we’ve seen that the last several decades where there’s quite a bit of intensity when it comes to the selection of federal judges and confirmation hearings, and probably even more so in certain state courts when they’ve been, you know, fairly engaged in identifying new constitutional rights. And you know, it’s hard to complain about the people wanting to have a say in who their judges are if the judges are exercising considerable power. So that’s an initial point.
The second point is to just think about some of the challenges of the federal model, which, you know, in so many ways the federal courts, the U.S. Supreme Court in particular, is the crown jewel of American government. In fact, one reason I’ve written these books is to try to keep it that way. But one challenge for the federal courts is that we’re now… I don’t think I’m overstating things, but you know, I am trying to generalize a little bit, but I don’t think there’s been a court in world history that has embraced judicially enforceable rights, the identification of new constitutional rights, more than the U.S. Supreme Court over American history. I just don’t think another country has done it quite the way we have.
Then the second thing that’s important about that is we also happen to have a constitution that is one of the most difficult in world history to amend. So the federal constitution can’t be amended without the support of three-quarters of the states. So if the American people don’t care for a federal constitutional ruling, they just don’t have very good options. It’s very difficult to amend the constitution. And if the judges all have life tenure, it’s a bit of a game of chance of when someone leaves and who’s president at the time. You know, I think that’s why you hear so much conversation about life tenure these days.
At the state level, they’ve got, I would say, perhaps the problem slightly in a different direction, which is their constitutions are very easy to amend, most of them by 51%, including California’s. I think the hardest is Florida’s is 60%. So no one has three-quarters of the 50 states. And then 90% of state court judges, including all of the judges in California, at some point have a retention election, so the people have a chance to decide whether to keep them. So at the state level, it really is much more democratic in the sense that if the people don’t care for a ruling, they can correct it by fairly easily amending the state constitution, sometimes through the initiative, or they could decide not to reappoint or not to re-elect that particular judge.
I would say, if I had my druthers, I would say each system perhaps is a little too extreme. That maybe the states should have fewer elections, and maybe the state constitution should be a little harder to amend so that they don’t… your California constitution is actually pretty long. I don’t think I could do what Justice Black used to do with the U.S. Constitution and just put it in my coat pocket. I think I’d have to have a pretty big backpack to carry your constitution around with me. And so maybe that’s not good, that it shouldn’t be so easy to amend. And maybe, you know, elections, we should be careful with elections and maybe have, you know, fairly long terms, but maybe life tenure isn’t necessarily the best approach.
I will tell you one other thing about how we got life tenure in the federal system. So two of the chapters are about how judicial selection models have evolved over time and the history of judicial review and the court’s authority to invalidate laws under state or federal constitutions. And the story of life tenure goes out of a very significant case in Rhode Island of all places. Before the federal constitution was written, the Rhode Island Supreme Court invalidated a law under the Rhode Island constitution. The Rhode Island legislature didn’t like it, called all five justices to a legislative hearing to complain about it. Four of the five showed up; one claimed he had a previous engagement, which is amusing. Ultimately, the Rhode Island legislature did not throw the justices out, but at the time they had just one-year terms, and they threw four of the five—they did not reappoint four of the five. The fellow that didn’t show up got reappointed. And Alexander Hamilton, when he wrote Federalist 78, said, “You know, we can’t have this. We can’t have a situation where the legislature can intimidate the judges into not doing their duty to invalidate unconstitutional laws.” And I think that’s the source of life tenure. And you might be amused to know that just two governments in America now have life tenure, and it’s the federal government, the federal judges—me—and the Rhode Island judges. So ultimately, Rhode Island learned the same lesson the feds did, and they’ve got life tenure with no limits. And so we have the smallest and the biggest jurisdiction both with life tenure, no age limits, no elections. But most of the other states do not follow that approach.
The Risks of Judicial Elections [38:30]
Bob Zadek: On the subject of election—by the way, you… I couldn’t agree more that the issue of judicial selection is… it makes my head explode. I don’t know how to… I, as a hobby, I sort of reinvent governments and I sort of in my head, I draft constitutions to make them, to borrow a phrase, more perfect. But I can’t… I can’t figure out even how to go about deciding the best system for judicial selection. But towards that end that you have identified, I would, for the purpose of this show, I am going to now add one word to the title of your book, which will, I think, tee up an issue. You ask the question in the title of your book, “Who Decides?” And part of it is the people or the legislature or state courts versus federal courts. And I would add a word just to introduce a topic for discussion: not “Who Decides?”, but “Who Best Decides?” And when you add the word “best” in the title and you try to decide that to a system like selection of judges, and you give a nod to populism, to direct democracy—you give more than a nod to direct democracy in your book, you look approvingly towards direct democracy at the state level, which is more dominant than at the federal level—but I would say when it comes to who best decides to be in the judiciary, who best decides, is it really the case that the public is in any position whatever to best decide who ought to be a judge? And is it… does that result in a judge like a member of the House of Representatives or the equivalent in state houses, the people’s house, for a judge to sit in a courtroom and in chambers writing decisions with an eye towards the next election? And isn’t that the result of direct election of judges? And if I’m right, and if it… wouldn’t that lead to a tilting away from the scholarship of being a judge and more to winning the approval of 51% of the electorate?
Jeffrey Sutton: Well, I take your friendly amendment. If we have a second edition, I think I might call it Who Best Decides?. I like it. And I’ll answer that question globally and then I’ll go to the judicial selection point. “Who best decides” is often going to be just laid out in a constitution, and if a branch of government has it, great, we’ve got to honor that. Certainly a judge has to respect that because it’s what the people did. But if it’s not clearly said, set forth in a constitution, the “who best decides” answer is invariably localism. Way better to let people at the local level, where they know the situation the best, try something out. So I’m a huge fan of localism, and that definitely is a theme in the book.
Now, who best decides the selection of judges? You said your head explodes when you try to write a constitution that deals with this, and I have to say mine does something similar because I find it very, very difficult. I am quite sympathetic with the point that it’s a lot to ask of voters—most of them happily not lawyers—how would they be able to judge who the judges should be when, you know, they have a name to go on, maybe they have a political party affiliation? But you know, it’s very difficult. You and I would both agree it’s quite misleading to think someone who runs as a Democrat or Republican, that that tells you how they interpret laws, which is not partisan, not political. It’s supposed to be language and precedent and things lawyers do.
The only thing I would just say about letting the people have a role here is I saw this in Ohio. So in my state, the judges run every six years. It’s now a partisan election where your political party is next to your name. And so yes, it has lots of politics in it. The people still don’t have a great sense of what they’re doing. But the one thing the people can do is they can correct not micro, but macro trends. So if the people of a state just get a sense that the state court has become the “who decides” answer in too many areas where the constitution doesn’t seem to speak to the issue, that’s pretty… that’s a pretty useful corrective. So I quite agree that in individual elections in like single cases, they’re probably not going to have much of a sense of how to make this vote. But I do think big-picture trend-wise, they might be able to say, “Why is the state court making all these decisions? And whoever is on that court, I’m now uncomfortable with.”
The reason I think using elected officials solely, exclusively to select their judges, particularly for life terms, is that has a different risk. And that risk is that they treat the judges as just representatives, just “judicial representatives” that they assume will reflect their perspective on the issues they care deeply about, whatever they are: abortion, takings, economic liberties, redistricting, you name it. So there’s still a risk when the elected officials are the ones doing it. But maybe the… you know, this is probably something people like Justice Scalia would definitely agree with: this whole judicial selection problem becomes less salient, less significant if judges are being really careful about construing laws consistent with their meaning. So if a statute says something, the judge’s obligation is to honor what it says. If the constitution says something, the judge is duty-bound to honor what it says. And when judges go beyond that modest task, that’s when they can expect to see selection processes get very complicated because at that point, the people and their representatives start thinking to themselves, “I didn’t think that was their call. I thought that was a call for the legislature. I thought that was a call for the Governor or that was a call for local government. Where did they get that power?” And when the state courts have a hard time answering that question, like they can’t point to something that says, “Yeah, yeah, yeah, we were told to do this,” I quite understand when people get uncomfortable with that. And I think judges… one nice thing about running for election every 6, 10, or 12 years—some of my state court judges say this all the time—is it keeps them humble. It reminds them that they’re serving the people. When they go out to local bar association events and give talks, they’re reminded: what is it the people care about? They hear their perspectives. And so, you know, elections have got plenty of warts, but you know, as you pointed out, your head does start to explode when you try to come up with the perfect system.
Bob Zadek: I get very afraid of… you and I may—and “disagree” is far too strong a word—but I have a bias against direct democracy. I am more in the… many of the founders were quite skeptical of direct democracy. That’s why they built the Electoral College and that’s why they built the Senate. They just had that bias, and I share that bias. I early, a decade ago, something caught my eye and I did a show on… Texas had an election, and in California, the Insurance Commissioner is elected. I don’t know how you campaign that you are going to be a better Insurance Commissioner than your opposing candidate—shorter policies, who knows? But I imagined when I learned that Texas textbook commissioner was an elected office, I tried to imagine: how do you run for that office? Do you say, “In my textbooks, George Washington is not going to be the first president. I have a better idea”? I mean, how do you campaign? So putting… I then convert that thought process to: how would you run for office as a judge? Do you present your SAT scores? Do you publish your reversal rate if you’re a trial court judge? I mean, it just is mind-boggling, and it just… which is why I say my head explodes. I couldn’t begin to figure out how to select judges.
Jeffrey Sutton: Well, the way to dignify your point and show that I have a lot of sympathy for it is that it’s very strange to use a majoritarian process to select someone for a non-majoritarian job. I mean, being a judge is not majoritarian. We’re not supposed to put our finger in the wind for every hard case and say, “What do the people want today?” We’re supposed to look at what the constitution says, and sometimes the constitution’s quite counter-majoritarian. In other words, it’s designed to protect this criminal defendant when everybody despises because of the allegations against him or her, and the last thing you want is someone who only will do in their job as a judge what the majority wants at that point. That just destroys a constitutional right. So I quite agree with you. But at the same time, it still… we still live in a democracy, so the people… let’s put it this way: there’s no minoritarian way to select judges. You have to use the majority at some point, whether they’re the majority elected officials or a majority of citizens. And you know, the initiative—well, people in California appreciate its warts, but it’s also been used to correct things where the legislature was getting out of touch with the people. So I assume you would probably be able to point to a couple, I don’t know if you liked Prop 13, but there’s some props I’ll bet you thought were not crazy.
Closing Remarks [50:14]
Bob Zadek: Judge, we have only a few minutes left. What are the… as our listeners process all that you have explained to them, what is the takeaway that you would offer to them? We only have about a minute left as to how they, when they approach the only decision they have to make is on voting, how should they look upon their view of government differently and how does that manifest itself in what they should advocate for or do? We have about a minute left.
Jeffrey Sutton: Yeah, you know, one of the great things about Americans is we have deep convictions about the right way to run a government. We have deep convictions about our liberties, our property rights, equality. And I would just emphasize that if you care about those things, most of the action’s in the states at the outset. I mean, I think you’re 83 million cases filed in the state court system across the country, just 400,000 in the federal system. 83 million, 400,000. If you care about the rule of law, liberty, equality, property rights, you’ve got to be focused on what’s happening in the state courts where the state constitutions provide a second shot and a second option. And ground-up development of ideas and rights is often going to be better than top-down, you know, winner-take-all approach. So my hope is that we’ll start to think a little bit more about that as we face our next challenges.
Bob Zadek: We’ve been speaking with Judge Jeffrey S. Sutton. He is the Chief Judge of the United States Court of Appeals for the Sixth Circuit. He has just written Who Decides? States as Laboratories of Constitutional Experimentation. It’s a thoughtful book. It introduces you to so many concepts you thought you knew, but in reading the book, you learn you didn’t quite know them as well as you should have. Judge Sutton, thank you so much for giving us your thoughts and your wisdom.
Jeffrey Sutton: Thank you, Bob.
Bob Zadek: Bob Zadek saying so long to my friends out there. I’ll be back again next Sunday. Have a good Sunday to all my friends out there.