Regular readers of this blog know that I believe Judge Joan Larsen, of the Sixth Circuit Court of Appeals, to be a prime candidate to fill the next Supreme Court vacancy should another seat open up during the Trump Administration. Late last year, Judge Larsen delivered the Sumner Canary Memorial Lecture at Case Western Reserve Law School in Ohio, and that school’s law review has just published her remarks.
The lecture is a short and valuable exposition on the often nuanced relationship between state and federal courts–something Judge Larsen knows well. I highly recommend the entire piece to the reader. But a couple of points she made struck me as particularly interesting from an organizational perspective.
First, Judge Larsen singled out geographic dispersion of judges as a major difference between her prior experience on the Michigan Supreme Court and her current experience on the Sixth Circuit. Her current colleagues are based out of offices in their home cities, spread across several states, and they only regularly come together to hear oral arguments in Cincinnati. This means that the casual walk down the hall to chat with a colleague is not possible, and that all communication must therefore be both effortful and (by necessity) more formal. She writes,
Obviously, it is always good to think carefully about what you are going to say next. And having to pick up the phone, write an email, or send a memo produces that result. But on the other hand, those casual one-on-one interactions [while on the Michigan Supreme Court, and earlier as a law clerk] often gave me some of my best ideas.
This is a really important point. Appellate judges must as teams to decide cases, either en banc or in panels, and the combination of collegiality and physical proximity helps produce decisions that are thoughtful, sensible, and complete. And this is not limited to judges. Think about any work team in which you have participated. What is more productive — pounding out an email to the team and waiting for a string of responses, or having a short, direct conversation with a colleague? As Judge Larsen respectfully notes, “[t]here is not much we can do about geographic dispersion.” But awareness of the limits that dispersion places on judges should incentivize the courts to consider the best ways to leverage technology in order to promote regular contact.
A second interesting aspect of Judge Larsen’s speech concerned the argument that state courts should interpret state constitutions to grant rights not otherwise protected by the U.S. Constitution — a position that has been advanced, at least implicitly, by her Sixth Circuit colleague Jeffrey Sutton. But Judge Larsen taps the brakes on this view, noting that as a practical matter most litigators do not try to hang their hats on an expansive view of state constitutional rights. Nor should they, in her estimation, because many (if not most) state constitutions are more amenable to amendment through non-judicial institutions than is the U.S. Constitution. “This means,” she explains, “that if the citizens of … a state are unhappy with the rights or protections provided by their constitution, they have a direct means to change it.”
This is an important organizational point for state court systems. Courts already have to navigate an external environment in which they rely on the other branches of government, the voters, and the general public for resources and legitimacy. That resource dependence necessarily promotes institutional humility. To the extent legal change can come about through democratic and majoritarian institutions, courts may well want to think carefully about initiating such change on their own.
This is not to say, of course, that state courts should never interpret the law to effectuate a significant change in doctrine. Judge Larsen acknowledges as much, and she is certainly correct. But when there are viable alternatives to reach the same result, courts must devote extra consideration to what their role ought to be.
The Interdependent Third Branch 