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The Difficulty of Mathematically

Measuring the Many Factors Driving


Constitutional Change in Our State
Supreme Courts: A Judicial Perspective

SCOTT L. KAFKER*

P
rofessor Marshfield is to be commended for his ambitious
attempt to begin to quantify constitutional change. As data-
driven decision making transforms our world and gives us an
increasingly sophisticated understanding of its inner-workings, the
obvious question for scholars is what it can teach us about constitutional
law.
As a judge and former adjunct professor of state constitutional law, I
have often wondered about the different factors driving constitutional
change in the courts. In my class, we explored the dynamic relationship
between state and federal constitutional law; that is, how changes in
United States Supreme Court doctrine result in reactions by state supreme
courts, especially concerning the rights of criminal defendants. 1 We
examined horizontal federalism—how a major decision by one state
supreme court influences other state supreme courts deciding the same
question, for example, in education financing. 2 We also considered the

* The Honorable Scott L. Kafker, Associate Justice, Supreme Judicial Court of


Massachusetts. Professor of Constitutional Law, Boston College Law School, 2009-2015. Justice
Kafker would like to thank his law clerks, Catherine DiVita and Christina Ho, and his intern,
Eric Dolce, for their research assistance on this commentary.
1 See Robert Williams, THE LAW OF AMERICAN STATE CONSTITUTIONS, 120, 194-205 (2009);

see, e.g., People v. Anderson, 493 P.2d 880, 891 (Cal. 1972); see also Massachusetts v. Upton, 466
U.S. 727, 732 (1984); Commonwealth v. Upton II, 394 Mass. 363, 372 (1985); Commonwealth v.
Upton, 390 Mass. 562, 566 (1983).
2 See Williams, supra note 1, at 120, 352; see, e.g., McDuffy v. Sec’y of Exec. Office of Educ.,

415 Mass. 545, 618 (1993).

519
520 New England Law Review [Vol. 51|3

interaction between initiatives, referendums, and judicial decisions (the


evolution of the constitutional right to gay marriage, for example,
demonstrates how the courts, state legislatures, advocacy groups, and the
public at large can rapidly respond to each other intensely and forcefully,
using their respective constitutional powers). 3 We discussed the impact of
judicial elections on judicial decision making, 4 as well as the influence of
the extra-judicial writings by such distinguished jurists such as U.S.
Supreme Court Justice William Brennan and Oregon Supreme Court
Justice Hans Linde. 5 We also looked into the most compelling academic
work. 6 Finally, we considered the judicial alternative of common law to
constitutional law solutions. 7 We did so, however, qualitatively, not
quantitatively. We never had the data to do a quantitative comparison to
weigh the importance of the different factors. Professor Marshfield’s
attempt to quantify constitutional change by comparing at least two
variables is a good beginning. That being said, I have significant questions
about it.
I would like to begin with a quick overview of where I believe I differ
with, or depart from, Professor Marshfield’s analysis, and then I will try to
explore my understanding of those differences or departures in more
detail. The focus of Professor Marshfield’s article is a statistical analysis
examining the relationship between formal constitutional change (that is,
changes in the text of constitutions through amendments) and informal
change (that is, judicial interpretation of constitutions without changes in
constitutional text). According to his article, the prevailing academic theory
is that the easier it is to amend the text of the constitution, the less often
informal judicial change takes place. 8 He states that, under the dominant

3 See Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 393–94 (2003); Schulman v.

Attorney General, 447 Mass 189, 195–96 (2006); see also Scott L. Kafker and David A. Russcol,
Standing at a Constitutional Divide: Redefining State and Federal Requirements for Initiatives after
Hollingsworth v. Perry, 71 WASH. & LEE. L. REV. 229, 229 (2014).
4 See generally Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).
5 See generally William Brennan, State Constitutions and the Protection of Individual Rights, 90
HARV. L. REV. 489 (1977); Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18
GA. L. REV. 165, 179 (1984). Professor Linde's article has been cited in 308 articles, three United
States Supreme Court cases, one federal circuit court of appeals case, and 31 state supreme
court cases.
6 See, e.g., Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal

Rationality Review, 112 HARV. L. REV. 1131 (1999) (cited in 184 articles and four state supreme
court cases); Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 HARV. L.
REV. 1147 (1993) (cited in 171 articles and eight state supreme court cases).
7 See In re Farrell, 108 N.J. 335, 348 (1987); In Re Conroy, 98 N.J. 321, 346–48 (1985); In re
Quinlan, 70 N.J. 10, 38–40 (1976) (discussing alternatives of common law or constitutional
basis for addressing right to refuse medical treatment).
8 Jonathan L. Marshfield, Courts and Informal Constitutional Change in the States, 51 New
2017] A Judicial Perspective 521

theories, “when all else is equal, we would expect to find an inverse


relationship between formal amendment frequency and rates of informal
amendment. In other words, all else being equal, states with high formal
amendment rates should experience less informal amendment and vice
versa.” 9 Professor Marshfield’s statistical analysis, he contends,
undermines this theory. 10
Although I am very interested in whether statistics may help us better
understand constitutional law, I approach Professor Marshfield’s article
with some skepticism for a number of reasons. First, based on my reading
of the literature he cites, and my own limited research, I question whether
what Professor Marshfield calls the “prevailing theory” of state
constitutional change is indeed the prevailing theory. The academic
writing seems much more nuanced to me, recognizing that both formal
and informal change are regularly occurring for a variety of different
reasons. 11 I also question his methodology for accounting for informal
change, as I believe it is significantly under-inclusive. In my view, informal
constitutional change in the states through judicial interpretation is
constantly, albeit often incrementally, occurring, and this change is driven
more directly and powerfully by factors other than the ease and availability
of formal amendment. The explanations for informal constitutional change
are therefore incredibly complex and involve multiple variables.
Consequently, I believe that they are quite difficult to encapsulate
statistically. This suggests to me that the two-variable approach has
somewhat limited utility, and I suspect Professor Marshfield would not
disagree. Although we take different paths to get there, Professor
Marshfield and I do seem to end up in the same place. He concludes his
article by stating that “the drivers of informal amendment are more
complicated than a simple hydraulics theory might suggest.” 12 With this
overview in mind, let me dig into the details.
Professor Marshfield states that “much scholarship on state
constitutional change [focuses] on frequent formal amendment as the
dominant method of constitutional change.” 13 This focus, according to

Eng. L. Rev. 453, 455–58 (2017).


9 Marshfield, supra note 8, at 491.
10 Marshfield, supra note 8, at 491–93.
11 See, e.g., Williams, supra note 1, at 32–33 (quoting Dr. Douglass Reed as describing "a

new theory of state constitutional meaning that emanates not exclusively from courts, but
rather, from an 'exchange between popular mobilization and judicial interpretation'"); G. Alan
Tarr, UNDERSTANDING STATE CONSTITUTIONS 139, 161–73 (1998) (discussing frequency of
formal amendment in twentieth century and emergence of "new judicial federalism" in the
early 1970's).
12 Marshfield, supra note 8, at 515.
13 Marshfield, supra note 8, at 455–56.
522 New England Law Review [Vol. 51|3

Marshfield, “often presumes that informal processes are less significant


pathways for state constitutional change.” 14 He goes on to say that, perhaps
because state constitutions are amended so frequently, scholars have
generally failed to investigate whether state constitutions also change
informally. 15 He then concludes that his “findings [which demonstrate that
there is substantial judicially imposed constitutional change in the states]
provide important insight into processes of state constitutional
development.” 16
Although I defer to the scholars commenting on this article regarding
the prevailing theories, I do not find this premise well-supported in the
article or consistent with my own practical understanding. There is little in
the way of citation provided for these propositions, and my reading of the
articles cited support my own sense that both formal and informal
amendments are powerful forces of change and of great interest in the
academic literature, at least in the period of time he is analyzing (1970-
2004). 17 As Professor Marshfield recognizes elsewhere in the article, “after
1970, . . . there was a dramatic increase in state rulings grounded in state
constitutional law.” 18 Professor Marshfield recognizes the excellent
scholarship of Professor G. Alan Tarr who, along with his Rutgers
colleague, Robert Williams, has described the importance of new judicial
federalism originally inspired by United States Supreme Court Justice
William Brennan’s famous 1977 Harvard Law Review article. 19 Justice

14 Marshfield, supra note 8, at 479.


15 Marshfield, supra note 8, at 456–57.
16 Marshfield, supra note 8, at 460.

17 For example, Professor Marshfield looks to John Dinan and Heather Gerken (among

others) to support his proposition. See Marshfield, supra note 8, at 456–57 nn. 8, 13. The articles
by Dinan and Gerken, however, are much more measured. As Dinan states, "We are so
accustomed when we talk about constitutionalism to focus first and foremost on courts that
we often fail to attend to the importance of constitutional amendment." John Dinan, State
Constitutional Amendments and American Constitutionalism, 41 OKLA. CITY U. L. REV. 27, 28
(2016). Dinan concludes, "I have sought to turn attention away from the usual focus on state
courts in interpreting state constitutions." Dinan, supra, at 50. Gerken likewise stresses that the
"most widely recognized means for effecting [constitutional] change is, of course, judicial
interpretation." Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response
to Our Undemocratic Constitution, 55 DRAKE L. REV. 925, 929 (2007). She also emphasizes the
complexity of the academic literature. See Gerken, supra, at 929, 930–32. Marshfield himself
writes, "The processes of constitutional change are incredibly complex and should not be
oversimplified." Marshfield, supra note 8, at 471. I find the detailed descriptions of both
informal and formal change occurring during this time period more compelling. See, e.g.,
Williams, supra note 1, at 32, 119–21; Tarr, supra note 11, at 139, 161–73.
18 Marshfield, supra note 8, at 484.

19 See Marshfield, supra note 8, at 484–85; Brennan, supra note 5, at 491; Williams, supra note

1, at 113-33.
2017] A Judicial Perspective 523

Brennan could legitimately say less than a decade into this timeframe that
“[r]ediscovery by state supreme courts of the broader protections afforded
their own citizens by their state constitutions . . . is probably the most
important development in constitutional jurisprudence of our times.” 20
Justice Brennan’s article itself has been cited 2,180 times, 151 times by state
supreme courts. As Professor Marshfield eventually concludes, informal
amendment is actually a “frequent” and “prominent” method of
constitutional change in the states. 21 As I question what Marshfield calls the
“prevailing theory,” I am not surprised by his findings that demonstrate
that the theory is somewhat inaccurate, and that there is significant
informal constitutional change despite the availability and regularity of
formal amendment.
I also have concerns about Professor Marshfield’s methodology for
calculating informal constitutional change and suspect that he may be
significantly understating the amount of such change. Professor Marshfield
describes informal constitutional change as “occur[ring] when binding
constitutional rules are altered without any corresponding changes to the
constitution’s text.” 22 He then draws on “an original database of state high
court opinions from 1970 to 2004” where the court “chose to explicitly
overturn one of its own constitutional precedents.” 23 He correctly
recognizes that this database is “imperfect in that [the number of cases] are
likely under-inclusive of instances where courts contributed to informal
amendment.” 24 Just how under-inclusive is what troubles me.
Although I have not drilled down through all the numbers, I decided
to look further into the Massachusetts cases to test the methodology.
Professor Marshfield’s table lists seven cases from the Supreme Judicial
Court that purportedly represent the informal constitutional change that
occurred between 1970 and 2004. 25 They are: (1) Conor v. Commonwealth, 363
Mass. 572 (1973), overruling Commonwealth v. Doherty, 353 Mass. 197 (1967);
(2) Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 (2004),
overruling Antioch Temple, Inc. v. Parekh, 383 Mass. 854 (1981); (3) Pinnick v.

20 Chip Mellor & Clint Bolick, Opinion, The Power of State Courts, NAT’L L.J. Sept. 3, 2001;
see also Ronald K.L. Collins, Peter J. Galie, & John Kincaid, State High Courts, State
Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey, 13 HASTINGS CONST.
L.Q. 599, 600 (1985-1986) (finding that, "[s]ince 1977 alone, state high courts have rendered at
least 217 rights-affirming decisions based upon provisions of their state constitutions-
approximately a 131 percent increase in the number of such decisions over the ninety-four
decisions issued during 1950–1977").
21 Marshfield, supra note 8, at 461.
22 Marshfield, supra note 8, at 462.
23 Marshfield, supra note 8, at 487.
24 Marshfield, supra note 8, at 487.
25 Marshfield, supra note 8, at 517.
524 New England Law Review [Vol. 51|3

Cleary, 360 Mass. 1 (1971), overruling Commonwealth v. Boston Transcript Co.,


249 Mass. 477 (1924); (4) Stonehill College v. Massachusetts Commission
Against Discrimination, 441 Mass. 549 (2004), overruling Wynn & Wynn, P.C.
v. Massachusetts Commission Against Discrimination, 431 Mass. 655 (2000); (5)
Corning Glass Works v. Ann & Hope, Inc., 363 Mass. 409 (1973), overruling
General Electric Co. v. Kimball Jewelers, Inc., 333 Mass. 665 (1956); (6) Tobias v.
Secretary of the Commonwealth, 419 Mass. 665 (1995), overruling In re Opinion
of Justices, 294 Mass. 610 (1936); and (7) Commonwealth v. Forde, 367 Mass.
798 (1975), overruling Commonwealth v. Phelps, 209 Mass. 396 (1911). 26 This
compares with twenty-nine formal amendments during the same time
period. 27
Seven cases, over the course of twenty-four years, struck me as
dramatically under-inclusive of judicially imposed constitutional change in
Massachusetts during this timeframe. Without doing a systematic analysis,
I started thinking about the most important constitutional cases of this
era—ones that shook the constitutional firmament in Massachusetts.
Missing from Professor Marshfield’s list were District Attorney for the
Suffolk District v. Watson, 381 Mass. 150 (1980) and Commonwealth v. Colon-
Cruz, 393 Mass. 150 (1984), which declared the death penalty
unconstitutional in Massachusetts. It did so after the California Supreme
Court declared its state’s death penalty unconstitutional and while the
United States Supreme Court reconsidered and eventually reconfirmed its
support of the death penalty. 28 Also not on the list was Goodridge v.
Department of Public Health, 440 Mass. 309 (2003), which declared
Massachusetts’ marriage laws unconstitutional because they did not allow
gay marriage, and McDuffy v. Secretary of Executive Office of Education, 415
Mass. 545 (1993), which declared the state’s funding of public education
unconstitutional under an education provision drafted by John Adams
more than 200 years earlier. In the education case, the court was guided by
decisions from other state supreme courts that ruled similarly. 29 Also

26 I requested the seven cases from Professor Marshfield, and he kindly provided them.
27 Marshfield, supra note 8, at 517.
28 See generally Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153

(1976); Anderson, 493 P.2d at 899; MELVIN UROFSKY, DISSENT AND THE SUPREME COURT, 388–
400 (2015).
29 See McDuffy, 415 Mass. at 618–19 (adopting guidelines set forth by Rose v. Council for

Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989) because they "fairly reflect[ed] [the court's]
view of the matter and [were] consistent with the judicial pronouncements found in other
decisions"). The McDuffy decision was part of a wave of state constitutional education
decisions tracing back to the California Supreme Court decision in Serrano v. Priest, 5 Cal.3d
584 (1971). See also William E. Thro, Judicial Analysis During the Third Wave of School Finance
Litigation: The Massachusetts Decision as a Model, 35 BC. L. REV. 597, 600 n.22 (1994). See
generally, e.g., Helena Elementary Sch. Dist. No. 1 v. State, 769 P.2d 684 (Mont. 1989); Rose v.
2017] A Judicial Perspective 525

absent from Professor Marshfield’s list was Commonwealth v. Gonsalves, 429


Mass. 658 (1999), which thoroughly explored the standards for departing
from United States Supreme Court jurisprudence in the area of search and
seizure. In the context of exit orders from vehicles at police stops, the
Supreme Judicial Court emphasized the primacy and independence of
state constitutional interpretation, concluding that the court was in no way
“compelled to act in lockstep with the United States Supreme Court[.]” 30
This case is a classic example of the new judicial federalism discussed
above. Although these cases stood out, it is my sense that there are a large
number of other cases in which the court changed constitutional doctrine
without explicitly overruling precedent. 31 Judges often prefer to
distinguish rather than explicitly overrule cases, especially when they are
reconsidering decisions by their existing colleagues. It is far easier to say
that the case is different from an earlier case than to say that the earlier case
is wrong.
For Professor Marshfield’s mathematical analysis to be more reliable, a
much more individualized review of state supreme court decision making

Council for Better Edu., Inc., 790 S.W.2d 186 (Ky. 1989); Edgewood Indep. Sch. Dist. v. Kirby,
777 S.W.2d 391 (Tex. 1989); Robinson v. Cahill, 303 A.2d 273 (N.J. 1973).
30 Gonsalves, 429 Mass. at 668.
31 I also did a brief review of the Vermont case law and commentary. Vermont similarly
raises questions about gross under-inclusiveness in Professor Marshfield's numbers. He lists
this state as having only one informal amendment during the time period. Marshfield, supra
note 8, at 518. Vermont, however, seems to have had active informal change during this time
period. See, e.g., State v. Sprague, 824 A.2d 539 (Vt. 2003) (relying on higher standard under
Vermont Constitution and rejecting holding in Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977), that "when an automobile is lawfully stopped for a traffic violation, a police officer
may, as a matter of course, order the driver to exit the vehicle"); Baker v. State, 744 A.2d 864,
867 (Vt. 1999) (noting the state is constitutionally required by Vermont’s Constitution to
"extend to same-sex couples the common benefits and protections that flow from marriage
under Vermont law"); State v. Jenne, 591 A.2d 85 (Vt. 1991) (holding that young people, blue-
collar workers, less-educated people, and single people do not constitute distinctive groups
within the community for jury selection purposes under Vermont Constitution); State v.
Brunelle, 534 A.2d 198, 203 (Vt. 1987) (rejecting in part holdings in United States v. Haven, 446
U.S. 620 (1980), and Harris v. New York, 401 U.S. 222 (1971), that unlawfully obtained
evidence could be used to impeach defendants on cross-examination, and holding instead that
"previously suppressed evidence is unavailable to the State for impeachment purposes except
when it is clear that the defendant has testified during direct examination in a manner
contradictory to the suppressed evidence"); State v. Jewett, 500 A.2d 233, 235 (Vt. 1985)
(explaining standards to be applied "to aid in the formulation of a state constitutional
jurisprudence that will protect the rights and liberties of [the people of Vermont]"); Brigham v.
State, 692 A.2d 384 (Vt. 1997) (finding that the then-existing scheme for funding public
education violated the Vermont Constitution). See also Peter Teachout, "No Simple Disposition":
The Brigham Case and the Future of Local Control Over School Spending in Vermont, 22 VT. L. REV.
21, 22–23 (1997).
526 New England Law Review [Vol. 51|3

will be required. Unfortunately, a small army, or at least a battalion of


researchers will be required to go through the cases and make sure
important constitution-changing decisions are identified and included in
the database. Exclusive reliance on express overruling is going to be
grossly under-inclusive.
Indeed, as I stated in the overview, it is my sense that constitutional
change occurs frequently, though often incrementally, in the state supreme
courts. Since the 1970s, state supreme courts have heeded Justice Brennan’s
call to arms and turned to their state constitutions to protect individual
rights. 32 These courts regularly revise and reverse inconsistent or outdated
state constitutional law precedents and replace them with rules that are
more reflective of contemporary realities and understandings. 33 This
constitutional process is consistent with the state common law tradition,
which has been described by former New York Court of Appeals Chief
Justice Judith Kaye as “not static” but “proceeds and grows incrementally,
in principled fashion, to fit a changing society.” 34 In adopting this
approach, state supreme courts addressing state constitutional law
questions have thus neatly combined common and constitutional law
traditions. 35 As Professor Burt Neuborne has written in the context of the
enforcement of “positive” constitutional rights, such as education or public
assistance to the poor, “state courts are imbued with the power and
creative ethos of the common law tradition.” 36 They have drawn on this
tradition “to play an avowedly generative role in the growth of American
law,” including state constitutional law. 37

32 Ronald K.L. Collins, Peter J. Galie & John Kincaid, State High Courts, State Constitutions,
and Individual Rights Litigation Since 1980: A Judicial Survey, 13 HASTINGS CONST. L.Q. 599, 600
(1985–1986) ("Since the early 1970's, state courts of last resort have issued a growing number
of decisions in which provisions of state constitutions have served either as independent
grounds or as the only grounds for ruling on questions of individual rights and liberties.").
33 For recent examples of this type of constant revision in Massachusetts, I recommend a

review of the cases addressing new technologies and search warrants. See, e.g.,
Commonwealth v. Molina, 71 N.E.3d 117 (Mass. 2017); Commonwealth v. Martinez, 71 N.E.3d
105 (Mass. 2017); Commonwealth v. Dorelas, 43 N.E.3d 306 (Mass. 2016); Commonwealth v.
Broom, 52 N.E.3d 81 (Mass. 2016); Commonwealth v. White, 59 N.E.3d 369 (Mass. 2016);
Commonwealth v. McDermott, 864 N.E.2d 471 (Mass. 2007).
34 Judith S. Kaye, Foreword: The Common Law and State Constitutional Law as Full Partners in

the Protection of Individual Rights, 23 RUTGERS L.J. 727, 730 (1991–1992).


35 Williams, supra note 1, at 194 (describing this blending of the common law and

constitutional law method in the United States Supreme Court) see also EDWARD H. LEVI, AN
INTRODUCTION TO LEGAL REASONING (2013) (featuring the classic description of the common
law method). See generally DAVID. A. STRAUSS, THE LIVING CONSTITUTION (2010).
36 Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 RUTGERS L.J. 881,

897 (1988–1989).
37 Id. at 896.
2017] A Judicial Perspective 527

As evidenced by the case law and Professor Marshfield’s findings, the


availability of a formal amendment process does not appear to be a
determinative or even particularly important factor to state supreme courts
considering constitutional questions, at least when it comes to interpreting
the rights of criminal defendants, the Due Process or Equal Protection
Clauses of the state constitution, or other broadly worded provisions, such
as those related to education or other so-called positive rights. Resolving
these questions sometimes requires distinguishing older constitutional
cases; other times it requires reversing them. But it is my sense that other
factors much more significantly impact judicial thinking, such as changes
in United States Supreme Court precedent, 38 ground-breaking decisions
from other state supreme courts, 39 powerful political or cultural
movements, 40 and possibly judicial elections. 41
That being said, I do think that there are certain direct and indirect
relationships between formal and informal constitutional change worth
exploring. First and foremost, major informal change begets formal
reactions and vice versa. Indeed, Professor Marshfield’s own numbers
support this proposition. 42 The different constitutional actors have distinct
constitutional powers and they are not shy about using them. 43 State
legislatures unhappy with judicial decisions are perfectly prepared to use
their constitutional amendment powers to correct interpretations they
disagree with. For example, when the Supreme Judicial Court declared the
death penalty in Massachusetts to be cruel and unusual punishment, the
legislature proposed a constitutional amendment stating that no provision
“shall be construed as prohibiting the imposition of the punishment of
death,” which the people approved. 44 The Supreme Judicial Court then
responded by declaring the particular death penalty statute passed by the

38 See generally Commonwealth v. Upton, 476 N.E.2d 548 (Mass. 1985).


39 See, e.g., the education cases following Robinson v. Cahill, 62 N.J. 473 (1973) and Serrano
v. Priest, 557 P.2d 929 (1976); see also Tarr, supra note 11, at 50 ("states regularly look to other
states for solutions to the common problems they face").
40 See generally Hans J. Hacker, THE CULTURE OF CONSERVATIVE CHRISTIAN LITIGATION
(2005); Gwendolyn M. Leachman, From Protest to Perry: How Litigation Shaped the LGBT
Movement's Agenda, 47 U.C.D. L. REV. 1667 (2014); The Gun Lobby Takes Aim at Mass. Judiciary,
BOS. GLOBE (Nov. 15, 2016), https://perma.cc/73AG-G2SN.
41 Tarr, supra note 11, at 169–72; Williams, supra note 1, at 32–33.
42 See Marshfield, supra note 8, at 491–93.
43 See Kafker & Russcol, The Eye of a Constitutional Storm: Pre-Election Review by the State

Judiciary of Initiative Amendments to State Constitutions, 2012 MICH. ST. L. REV. 1279, 1280 (2012);
Williams, supra note 1, at 409–15.
44 MASS. CONST. art. 26; Watson, 381 Mass. at 671; Hauck, et al. Capital Punishment

Legislation in Massachusetts, 36 HARV. J. ON LEGIS. 479, 485 (1999).


528 New England Law Review [Vol. 51|3

legislature unconstitutional on other grounds. 45 Additionally, when the


Supreme Judicial Court declared the state’s marriage laws unconstitutional
because they prohibited gay marriage, advocacy groups sought to use the
initiative and referendum process to pass a constitutional amendment
limiting marriage to one man and one woman. 46 In California, increased
protection for the rights of criminal defendants resulted in the passage of
Proposition 115, which sought to preclude most of the state’s criminal
procedure provisions from being interpreted to provide more protection
than their federal counterparts. This provision was subsequently deemed
unconstitutional by the California Supreme Court in Raven v. Deukemejian,
801 P.2d. 1077, 1088 (Cal. 1990). Thus, in important and highly contentious
social issues involving individual rights, the courts and the different
constitutional actors are fully engaged and using all of the powers at their
disposal.
Secondly, I think state supreme court justices, especially those who are
elected, are very much aware of the potential reactions of other
constitutional actors and their power and desire to respond to judicial
decisions with which they disagree, and that sensitivity may somewhat
shape the decisions themselves. 47 Although I do not believe judges will
choose not to act because of the availability of formal amendment as an
alternative means of constitutional change, I do believe that they consider
how other constitutional actors will respond to their actions. A fascinating
discussion of how at least one state supreme court justice took this into
account in deciding the Vermont civil union case Baker v. State 48 is
presented in Jeffrey L. Amestoy’s, Foreword State Constitutional Law
Lecture. 49 Amestoy wrote, “a state constitutional decision may not be
persuasive with the extra judicial actors who can alter it if it does not
acknowledge their legitimate constitutional role and engage them in

45 Colon-Cruz, 470 N.E. 2d at 128-29. See. e.g., People v. Anderson, 493 P.2d 880 (Cal. 1972)

(after the California Supreme Court declared its death penalty statute unconstitutional, an
initiative passed which reinstated the death penalty); Nicholas L. Georgakopoulos, Judicial
Reaction to Change: The California Supreme Court Around the 1986 Elections, 13 CORNELL J.L. &
PUB. POL'Y 405, 409 (2004) (discussing passage of Proposition 17).
46 See Hon. Roderick Ireland, In Goodridge's Wake: Reflections on the Political, Public, and

Personal Repercussions of the Massachusetts Same-Sex Marriage Cases, 85 N.Y.U. L. REV. 1417,
1423-24 (2010); see also Kafker, supra note 43, at 1303.
47 See Neal Devins & Nicole Mansker, Public Opinion and State Supreme Courts, 13 U. PA. J.
CONST. L. 455, 455–56 (2010).
48 744 A.2d 864 (Vt. 1999).

49 Jeffrey L. Amestoy, Foreward State Constitutional Law Lecture: Pragmatic Constitutionalism

—Reflections On State Constitutional Theory and Same-Sex Marriage Claims, 35 RUTGERS L.J. 1249
(2004).
2017] A Judicial Perspective 529

finding a solution.” 50 As an example, Amestoy cites the earlier Hawaii


Supreme Court decision granting marriage licenses to same-sex couples,
which was reversed by the citizens of that state. 51 He also quotes Professor
Cass Sunstein’s recognition of “the need for prudence in asserting even a
correct principle against a democratic process.” 52 Amestoy cautioned,
however, that these realities “do not mean . . . that a state supreme court
should abrogate its responsibility as a counter-majoritarian institution.” 53
I also recognize that state supreme court justices, unlike their
counterparts in the federal courts, have the option of relying on the
common law alone as an alternative to the constitution, and will sometimes
go that route to avoid difficult constitutional issues altogether. 54 Although
at least indirectly related to Professor Marshfield’s inquiry, it seems to be a
somewhat different issue, as it involves courts seeking a judicial alternative
to a constitutional solution rather than deferring to other constitutional
actors. This phenomenon appears to have more to do with respect for the
legislative process than deference to the formal amendment process.
Nevertheless, I can see how the existence of a formal amendment process,
in combination with the availability of a common law remedy, might lead
courts to go the purely common law route more often. This, of course, adds
even more complexity to any constitutional change causation analysis.
An even more powerful force in judges’ minds is, of course, judicial
elections. State supreme court justices are accountable to the electors in 38
states. 55 In total, “89% of state supreme court justices face voters—43% face
retention elections, 20% face non-partisan elections, and 26% face partisan
elections.” 56 Particularly controversial decisions, such as the abolition of
capital punishment in California and the invalidation of limitations on gay
marriage in Iowa, have resulted in the removal of state supreme court
justices. 57 Decisions involving criminal law are particularly problematic for

50Id. at 1265.
51Id. at 1255; see Baehr v. Lewin, 74 Haw. 530, 580 (1993).
52 Amestoy, supra note 49, at 1257; Cass R. Sunstein, Foreword: Leaving Things Undecided,

110 HARV. L. REV. 4, 97 (1996).


53 Amestoy, supra note 49, at 1255.
54 See, e.g., In re Farrell, 108 N.J. 335 (1987); In re Conroy, 98 N.J. 321 (1985); In re Quinlan, 70
N.J. 10 (1976) (New Jersey cases considering alternative of common law or constitutional basis
for addressing right to refuse medical treatment).
55 Devins & Mansker, supra note 47, at 462, 469.

56 Devins & Mansker, supra note 47, at 462. (quoting David Rottman, Judicial Elections in

2009 in Council of State Gov’ts at 290 (2009)).


57 See A.G. Sulzberger, In Iowa, Voters Oust Judges Over Marriage Issue, N.Y. TIMES (Nov. 3,

2010), https://perma.cc/AEA8-5AC4; Steven P. Croley, The Majoritarian Difficulty: Elective


Judiciaries and the Rule of Law, 62 U.CHI. L. REV. 689, 737 (1995) ("The 1986 electoral defeat of
three justices of the California Supreme Court, largely in response to their positions on the
530 New England Law Review [Vol. 51|3

state supreme court justices. “Studies show that particular issues, such as
crime and the death penalty, get judges subject to all election types to
consider public opinion.” 58
The role that elections play in constitutional change is, of course,
another factor that must be analyzed. According to one commentator,
“path-breaking state courts—state courts that take the lead in extending
rights and extending the bounds of the law—are subject to fewer
democratic controls than state courts that steer away from political
controversy.” 59 Indeed, of the first seven state supreme courts to interpret
their constitutions to “provide expansive protections to same-sex
couples . . . none . . . ma[d]e use of contested judicial elections.” 60 Millions
of dollars are also being spent by advocacy groups and others to change
the composition of state supreme courts. 61 The extent to which they are
successful and how that success results in changes in constitutional
doctrine would also be fascinating to explore and quantify.
I will end with a brief discussion of Professor Marshfield’s breakdown
of informal amendments by “subject and type.” 62 He has ten categories:
individual rights, voting, legislative branch, executive branch, judicial
branch, local government, taxation and finance, state and local debt, state
functions, amendments and revisions, and miscellaneous. 63 He describes as
another “interesting observation from the data . . . [t]he extent to which
courts have been active in changing the constitutional rules that regulate
the judiciary” and how “[t]his stands in contrast to rules regulating the
legislative and executive branches . . . .” 64 It seems to me that the significant
difference in numbers he describes is quite consistent with the judiciary’s
respect for separation of powers.
Professor Marshfield also emphasizes that “[i]nformal amendment by
courts was the dominant method used to change individual rights
protections[,]” while courts, on the other hand, are relatively inactive in
changes regarding taxation and finance. 65 This fundamental versus

constitutionality of the death penalty, is a clear example of how elected judges are
increasingly accountable to electoral majorities.").
58 Devins & Mansker, supra note 47, at 482.
59 Devins & Mansker, supra note 47, at 455.
60 Devins & Mansker, supra note 47, at 491-92.

61 See Maryl J. Chertoff, Trends in Judicial Selection in the States, 42 MCGEORGE L. REV. 47,

60-61 (2010); James Sample et al., The New Politics of Judicial Elections, 94 JUDICATURE 50, 51
(2010) (From 2000-2009, supreme court candidates raised $206.9 million nationally, more than
double the $83.3 million raised from 1990-1999).
62 Marshfield, supra note 8, at 494.
63 Marshfield, supra note 8, at 494.
64 Marshfield, supra note 8, at 497.
65 Marshfield, supra note 8, at 498.
2017] A Judicial Perspective 531

financial rights divide is consistent with established constitutional doctrine


and the analysis of the courts and other scholars. As the California
Supreme Court opined in a Proposition 13 tax case, “We are not here
concerned with a measure that affects those fundamental rights of
individuals which might be endangered at the hands of a majority.” 66
Likewise, the many finance provisions in state constitutions that control
what states can invest in and lend their credit to have been aptly described
by one insightful commentator as outdated and “disfavored” by the
judiciary, which has taken a hands-off approach to their enforcement. 67

CONCLUSION

Professor Marshfield invites us to enter a brave new world exploring


the statistics regarding constitutional change. This is difficult, unknown
territory, especially for lawyers, law professors, and judges who are not
particularly renowned for their quantitative skills. Although the
relationship Marshfield considers has only two variables (the relationship
between formal and informal constitutional amendment), even this limited
numerical analysis has its challenges and problems. I believe much more
research needs to be done and many more variables need to be considered
to meaningfully reflect the realities of constitutional change in the courts.
The first small steps in the longest journeys are, however, always the most
difficult. I very much look forward to following the Professor’s progress
along the way.

66 Los Angeles County Transportation Comm’n v. Richmond, 643 P.2d 941, 945 (Cal. 1982).
67 See Richard Briffault, Foreword: The Disfavored Constitution: State Fiscal Limits and State
Constitutional Law, 34 RUTGERS L.J. 907, 910 (2003).