Modeling Judicial Federalism: Predictors of State Court Protections of Defendants' Rights Under State Constitutions, 1969-1989

Drawing on data collected by Barry Latzer and using a logisticregression model that employs pooled time-series, this articletests a variety of factors for their impact on state high courtdecisions to diverge from U.S. Supreme Court criminal proceduredoctrines from 1969 to 1989. Several factors predict the developmentof independent state doctrines protective of civil liberties,including popular-vote retention elections and longer termsof office for state court justices, high court reputations,state wealth, and regional distinctions (with western courtsmost likely to advance individual rights). This study representsonly a small step in understanding an area of judicial behaviorthat has been long ignored in the political science literature.     

Explaining State High-Courts' Selective Use of State Constitutions

Although state constitutions offer substantial policy-makingopportunities, state courts are reluctant to base decisionson independent state constitutional law. Using state high-courtjudicial review decisions from 1981 to 1985, we tested a modelpredicting countermajoritarian state-law rulings. Legal andpolitical variables best predicted state constitutional decisions.Intragovernmental conflicts were particularly likely to resultin state-law decisions, while courts were especially reluctantto base civil liberties decisions on state constitutions. Casesbrought by government officials were likely to be decided onstate constitutional principles; state-law decisions were alsolikely to emerge from conservative states and states with tradilionalisticpolitical cultures. Although these latter findings stand apartfrom previous research connecting some forms of judicial activismto liberal political environments, they seem consistent withthe element of American conservatism seen particularly in traditionalisticstates (in the South and Southwest) demanding protection ofstate autonomy in the realms of policy development historicallyleft to the states.