Feb. 7, 2020 — Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit proposed that giving greater weight to state constitutions and court rulings would lead to a better balance of power between state and federal courts during a lecture Monday at the University of Houston Law Center.
The judge’s talk, based on his book, “51 Imperfect Solutions: States and the Making of American Constitutional Law,” was the year’s first Justice Ruby Kless Sondock Jurist-in-Residence Lectureship in Legal Ethics.
Sutton maintained that most discussions of constitutional guarantees center on U.S. Supreme Court decisions, failing to mention that many of the protections originated in state constitutions and how state court rulings greatly influenced the high court’s landmark rulings.
"The U.S. Supreme Court and federal courts in general are identifying more areas that they have authority over in American law and American politics," Sutton said. "The constant over time, is the U.S. Supreme Court exercising more authority over American government. You have noticed this phenomenon with all confirmation processes at the federal level in the past few years.
"There was a presidential election in 2016 that turned a sufficient number of Americans thinking a vote for president of the United States should be treated as a proxy to fill one seat on a nine-member court. Think of how far we've come from 1776.”
Sutton said that American citizens viewing the U.S. Supreme Court and other federal courts as political institutions would damage their authority and credibility to check other political branches of government.
He mentioned that a potential solution would be to provide more authority to lower courts.
“It’s a dangerous trajectory we’re on, but state courts and state constitutions can come into the mix,” Sutton said. “When you have a new social problem like data privacy or opioids, it’s a great idea to use the states as laboratories to try to fix this problem with their insights.
“It is way better to experiment in 50 different places with smaller populations than to have one experiment for the whole country at once before you know whether it’s a good idea or whether it will work.”
Law Center Professor David R. Dow, Cullen Professor of Law, and Texas Supreme Court Justice Brett Busby also provided commentary.
"It is one of our main responsibilities to be the custodian of the state constitution on the civil side in Texas," Busby said. "One of the things I wanted to reflect on looking back through Judge Sutton's wonderful book is the idea of giving state constitutions their own unique scope. Obviously, this needs to be a joint enterprise. It's not just something that the state courts can embark on or think about by themselves because we do have an adversarial system of justice that we take very seriously."
"What Judge Sutton says in the book is that this 51 models approach is a way of maximizing individual liberty," Dow added. "There are very good reasons for the value of equality to be the same everywhere. It should not be the case that there is inequality in one state but not in another state. But I think that it makes some sense to at least think generally about the clusters of rights that we think should have a uniform, and therefore national, interpretation versus the other clusters of rights that we are more comfortable handing over to the states so that they can perform their laboratory function."
Following the discussion was a question-and-answer session with alumni, faculty and judges in attendance.
Sutton was nominated by President George W. Bush and has served on the Sixth Circuit court based in Cincinnati, Ohio, since 1983. He served as a law clerk for U.S. Supreme Court Justices Lewis F. Powell, Jr., and Antonin Scalia, as well as Judge Thomas Meskill of the U.S. Court of Appeals for the Second Circuit. He received a B.A. from Williams College and a J.D. from The Ohio State University College of Law.
The Jurist-In-Residence program is named in honor of Justice Ruby Kless Sondock, a trailblazer in the law who graduated as valedictorian and one of only five women in the UH law school class of 1962. After practicing law for many years, Sondock was appointed to the 234th District Court in 1977, making her the first female state district judge in Harris County. She was appointed to the Texas Supreme Court in 1982, making her the first woman to serve in a regular session of the court. She was proclaimed a "Texas Legal Legend" by the litigation section of the State Bar of Texas in 2016.
Attendees received one hour of continuing legal ethics credit, with an hour of ethics.