A Conversation with Chief Judge Sutton

It’s a special edition of Advisory Opinions as David and Sarah talk to Chief Judge ...

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It’s a special edition of Advisory Opinions as David and Sarah talk to Chief Judge Jeffrey Sutton of the 6th Circuit Court of Appeals. The discussion ranges far and wide but includes a focus on a subject we don’t talk enough about: state constitutional law.

Show Notes:

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  1. DRHanson

    I enjoyed Sutton's discussion of the advantages of turning to state courts to try to win their clients' cases under the state constitutions. My state provides an excellent example of how this approach can be successful. A few years ago, abortion opponents in my state succeeded in getting the legislature to pass a very restrictive abortion law, with the hope that the new law would become the vehicle for the U.S. Supreme Court to consider overturning Roe/Casey. Of course, this strategy was based on the assumption that abortion rights supporters would challenge the law in federal court as a violation of the right to abortion under Roe/Casey. But abortion rights groups didn't play by that playbook. Instead, in a surprise move they challenged the law in state court, arguing that a right to abortion could be found in the state constitution. That case went to the state supreme court, which ruled that there is a fundamental right to abortion under the state constitution. Now, even if the U.S. Supreme Court overturns Roe/Casey, a constitutional right to abortion will still exist in my state. Whether or not one agrees with the outcome and the reasoning of the state court (and I don't), the strategy of focusing on the state constitution rather than the U.S. Constitution obviously worked in this instance.

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    Jim McC

    Interesting discussion- not a point I'd thought about much before, but some very valuable insights. I have one question- was I the only one for whom the word "innovative" (as it applies to judicial recognition of constitutional rights, whether federal or state) clanged off the ear? I'm not sure what "innovative" judges do with respect to original public meaning, beyond inventing things that don't exist. Roe, for instance, was an innovative approach to constitutional jurisprudence, inasmuch as it ignored the Constitution itself altogether. Is there another definition that was meant here? From the context (and Judge Sutton used it several times), I couldn't discern a difference.

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    Ben Connelly

    Very much enjoyed this episode with Chief Judge Sutton. I recognized his name from listening to this podcast! I’m still not sure he’s right about making it easier to amend the constitution. But perhaps that would have the effect of getting people to take it more seriously. Maybe it would be a release valve to get rid of some of the agitation against the rule of law that we see now on extreme right and left.

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  4. Michael Fenner

    I really appreciated this deep dive on state constitutions, but in my further reflections I am drawn to more questions. Over the last few weeks, the nation has had discussions around rights and the expansion of said rights. So where the 10th Amendment allows for states to operate where the federal government does not, and state constitutions allow for the extension of those rights, my main question is on the origination of rights. I have long believed that rights are found in the 'state of nature,' but does the Third Amendment genuinely fit into the state of nature? (probably a similar argument along the second amendment to defense and personal property, but there is no right to personal property as far as I - a lay person - am aware) Maybe to make a better case, we discuss Roe and Casey. While I have come around on the pro-life argument seeing the inherent and inarguable life of the fetus and seeing how both the federal Constitution and the state of nature do not inherently grant the right to an abortion, but more specifically protect the right of life and liberty. IF the Congress or a Convention were to be formed for an amendment to grant such a right, would there be a genuine argument along the line of argumentation that the bill of rights was written?
    So, TL;DR, rights, where do they come from in the modern context? Thin air?

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  5. J Coleman

    It is refreshing for me to see that, at least in this discussion, state constitutions are alive and well. In the early ‘70’s is was a student of Justice, then Professor, Hans Linde at the University of Oregon Law School. He made sure we understood the status of the state constitution in our federal system. Once appointed to the Oregon Supreme Court he made sure that parties before the Court did not lose sight of that status. In a series of “free speech” cases he articulated the foundation for the locus in Art 1 sec 8 of the state constitution of greater protections of speech than found in the First Amendment. I am glad to here that some actors in the federal system today are following this path. It warms my old heart.

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    Jeff C

    Great interview!

    So…if we have a slow legal news summer, could you all talk about the line between entrapment and legit informants as it pertains to investigations into terror plots? We’ve had the Michigan kidnapping plot and the Newburgh terror plot where the FBI seemed to really push the limits. Ofc, in Michigan it yielded acquittal and for the Newburgh terrorists - conviction. I’d be really interested to understand the nuance in the law in that arena.

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  7. Stephen Lee

    Great to hear an interview with Judge Sutton. This isn't relevant to this conversation, but I have wanted for years to thank him for his opinion in Deboer v. Snyder. I am not a lawyer, but it was well-reasoned and comprehensive of the questions presented, on an issue that matters personally to me.

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  8. Mathew A

    Good podcast.

    I'm one of those that think the 17th amendment was a HUGE mistake and should be repealed. It ruined the balance of power between the states and the federal government.

    I also think that federalism is going to be the only thing that can save our country from another civil war. So yes let's see more state experimentation, and devolve power as much as we can to the lowest level.

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    1. Mathew A

      Regarding amending the constitution, I could see maybe changing it to 2/3rd, but no more easy than that.

      But given the current partisan environment I don't think it would matter. The problem isn't the system, the problem is the people we keep electing

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    Will Roberts

    Good conversation.

    I would be curious to know which states grant more rights than what the federal constitution requires?

    I think electing judges is a really bad idea. It shouldn't be a popularity contest. They shouldn't be "accountable" to the people. The people who appoint them should be accountable to the people. But judges need to be removed from the people by a layer of autonomy or they can't do their jobs.

    I would be for term limits to Judges and Justices however.

    I think amending the constitution to make it easier to amend could be something that would pass easily if there were any interest in it. Everyone is frustrated with the current system. But instead of making it better they have turned the Supreme Court into a political boxing ring on all matters of substance. Perhaps the Supreme Court should go on strike and say we are kicking decisions back to the lower courts till an amendment to make the constitution easier to amend is passed.

    Jeff's mom sounds awesome.

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  10. MM

    I'm curious what the theory is behind making it easier to amend the U.S. Constitution. It sounds like: I would like to ratified amendment X, but it does not have enough support to pass under current requirements. So we need to ratify Y, which will make it easier to ratify X. But if there is not enough support to ratify X, why should there be enough support to ratify Y, enabling the ratification of X (and every other future amendment that would not have otherwise been ratified)?
    If on the other hand, we think the current politico-legal quagmire is in large part due to it being easier to get a court (or The Court) to interpret the Constitution to have already had X in its penumbras, leading us to pursue constitutional change in courts rather than through amendment, perhaps we should amend the Constitution to make it harder for courts to do so. This would restore the amendment process as the path of least resistance and thus of choice for making constitutional changes.
    So what is the theory?

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