Just Leave It to the States

During the heady years of the Warren Court, civil rights lawyers kept beating a path to the doorways of federal courthouses, bypassing state courts whenever possible. "Civil rights lawyers became lazy," says University of Virginia Law Professor A.E. Dick Howard. "They knew their best chance was to federalize everything, to get to the U.S. Supreme Court as fast as they could." Says Oregon Associate Justice Hans A. Linde, disapprovingly: "A generation of Americans was brought up to believe that all law and all wisdom come from these nine men in a marble temple." Even some liberal state court judges appreciated the trend, preferring that federal judges, appointed for life, take the heat for sometimes unpopular decisions advancing minority rights.

Under the Burger Court, access to the federal courthouse door is very gradually but steadily being restricted for activists seeking social change. Citing the increasing workload as a partial reason, the Burger Court has employed a variety of devices to cut back: raising procedural difficulties for plaintiffs, eliminating some fees awarded to lawyers, and demanding that civil rights advocates prove a discriminatory intent in cases of racial segregation. The Supreme Court has also insisted that more constitutional claims be heard by state rather than federal courts.

Last week such access was restricted further when the high court reduced the authority of federal courts to interfere in some state court civil proceedings. Specifically at issue: under New York law, a creditor with an unpaid judgment can summon the debtor to testify about his assets. If the debtor fails to show up, he may be cited for contempt of court and ultimately sent to jail. A lower federal court held the New York procedure unconstitutional. The Supreme Court reversed the ruling, declaring that the debtor should have raised his constitutional claim in the state court. Expanding the doctrine known as "abstention," the court declared that state contempt proceedings, like criminal prosecutions, should be free from federal court interference except in extraordinary circumstances. Justice William J. Brennan Jr. dissented vociferously, saying the court had "embarked on the dangerous course" of condoning widespread violations of civil liberties.

Ironically, Brennan has been the leading national figure encouraging state courts to take over leadership in protecting civil liberties. In a series of articles, dissents and statements, Brennan has urged state courts to find provisions in state constitutions that mandate "higher standards" than Burger Court rulings on individual rights.

Even before Brennan's invitation, however, several state supreme courts had begun to base some significant rulings exclusively on state constitutions--thus accepting the challenge of the Burger Court while evading some of its more conservative pronouncements. State court interpretation of state constitutional law is final, immune from Supreme Court review unless a violation of federal law can be established. Some state courts still assume "they don't have to protect individual rights any more since the U.S. Supreme Court is doing it," says California Associate Justice Stanley Mosk, "but more states are taking the view that they now have to do it."

The leader in state judicial innovation has long been California, which pioneered in halting the death penalty and in demanding the equalization of school finances. U.C.L.A. Law Professors Harold W. Horowitz and Kenneth Karst have likened the California court's steadfast liberalism "to those monks who kept classical learning alive so that it might be rediscovered in the Renaissance." Several other states now are showing similar independence. The New Jersey Supreme Court has declared that the state constitution "should be interpreted to give the individual greater protection" than that provided by the identically worded federal Fourth Amendment provision against unreasonable searches. When the U.S. Supreme Court overturned a South Dakota decision and specifically ruled that a dubious search of a suspect's automobile was legal, the state supreme court defiantly reinstated its original judgment of illegality--basing it this time exclusively on the state constitution. Early this year, Alaska followed a Michigan decision in rejecting the Burger Court's refusal to require counsel for suspects at preindictment police lineups. Says Virginia's Howard: "It's obvious that the American West still nurtures its tradition of individual liberties."

The authors of the Constitution clearly intended "to leave the states as the repository of individual rights," argues Justice Mosk, and the new independence of state courts could lead at its best to "a Phoenix-like resurgence of federalism." However, the process is necessarily uneven, with some states naturally more conservative than others. The simplest way to revive the spirit of the Warren Court, many civil libertarians believe, would be through the Supreme Court appointments that President Carter will have an opportunity to make.

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