In 23rd annual Brennan Lecture, Associate Justice Goodwin Liu examines role of state supreme courts

The January 1977 issue of the Harvard Law Review included an article, “State Constitutions and the Protection of Individual Rights,” written by Justice William Brennan Jr. Forty years later, a reappraisal of that essay was the basis for the Institute of Judicial Administration's 23rd annual William J. Brennan Lecture on State Courts and Social Justice, delivered by Associate Justice Goodwin Liu of the Supreme Court of California. Liu discussed the importance of state courts in interpreting state constitutional provisions that are similar to provisions of the federal Constitution.

Goodwin LiuWhile federal US Supreme Court decisions are often considered to be the ultimate interpretations of the law, Liu explained, state supreme courts are free to make different interpretations when examining analogous parts of their own state constitutions. Liu added that it is “no embarrassment” for a state to come to a ruling that differs from a federal one. “State courts have the prerogative and duty to interpret their state constitutions independently,” Liu said. “A state court may consult precedent as part of, but not in lieu of, its analysis of a state constitutional issue.” 

Liu also discussed the idea that informed Brennan’s article 40 years ago: A state court may be able to offer its residents protections that may not be covered under federal law. Liu referenced Wolf v. Colorado, a US Supreme Court decision that ruled protection against using evidence acquired illegally under the Fourth Amendment was not guaranteed by the federal government when it came to state-level criminal proceedings. However, after state courts began to adopt these protections in their own state constitutions, they were applied to federal law by the US Supreme Court ruling in Mapp v. Ohio.

As much as state courts usually look to federal courts as precedents, Liu noted, federal courts may look to state courts when issuing a new ruling. “An accumulation of state decisions that depart from federal precedent may induce the US Supreme Court to reconsider the issue,” he said, using New York Times Co. v. Sullivan as another example. The case had a landmark ruling that established the “actual malice” standard in libel law, which states that in order for a statement to be considered libel, there must be knowledge the information is false. By the time the US Supreme Court made the ruling, the malice requirement had already been adopted by 10 state courts. “This citation was perhaps no accident,” Liu said, “because the author of New York Times Co. v. Sullivan was no other than Justice Brennan.”

Liu concluded by acknowledging that “State Constitutions and the Protection of Individual Rights” is one of the most-cited law articles of all time and remains a defining analysis of state constitutional law. This, Liu added, demonstrates Brennan’s enduring influence on legal scholarship. 

Posted April 7, 2017