State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey

In 1985, state courts of last resort issued more decisions thanin any year since 1950 in which they extended rights protectionsto individuals beyond those recognized by the U.S. Supreme Courtby basing rights protections solely or independently upon stateconstitutional grounds. A survey of state high court judgesand justices reported here indicates that there has been a nationwideincrease in the number of individual rights cases litigatedunder state constitutions since 1980. Significant-to-moderateincreases, however, were more likely to be reported by justicesfrom the Northeast and West, from states having a moralisticpolitical culture, and from courts whose members are appointedby the governor and/or legislature. State constitutional rightsclaims are more likely to be raised in criminal than noncriminalcases, though in both types of cases and in most states, stateconstitutional rights claims are raised less frequently thanfederal constitutional rights claims. Majorities of judges andjustices favor the ideas of teaching state constitutional lawin law schools and of testing for knowledge of state constitutionallaw on bar examinations.