The Brennan Center hosts a unique gathering of judges, lawyers, and scholars. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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This week, I’m turning The Briefing over to my colleague Alicia Bannon, director of the Brennan Center’s Judiciary Program, to report on an exciting, first-of-its kind Brennan Center event that brought together the country’s leading thinkers about state courts and constitutions.

—Michael Waldman

Many of us are looking on with great concern as the U.S. Supreme Court moves a broad spectrum of federal law to the extreme right, from reproductive freedoms to voting rights. But we have other options: each state has its own constitution and own high court to protect and expand our rights. That’s why, almost 50 years ago, Justice William Brennan called on lawyers and judges to pay greater attention to state courts and state constitutions as “guardians of our liberties.”

In a (slightly belated) answer to that call, the Brennan Center recently launched State Court Report, a website, case database, and newsletter to focus attention on this important but underappreciated area of law. And last week, as part of that state-centric work, we hosted The Promise and Limits of State Constitutions, a symposium in partnership with the NYU Law Review with more than 300 people in attendance.

Over two days and seven panels, a fascinating set of conversations tackled everything from the relationship between state and federal courts, to how state constitutions should be interpreted, to how judicial elections and ballot initiatives impact the development of state constitutional law. We were honored to welcome more than a dozen sitting and retired state high court judges as panelists and attendees, along with prominent scholars and practitioners and many law students and members of the broader public.

One thing that struck me was the breadth of interest and enthusiasm for state constitutions. Arizona Justice Clint Bolick, formerly vice president for litigation at the Goldwater Institute, joined a panel, as did Justice Goodwin Liu of the California Supreme Court, a former law professor who was first nominated to the court by Gov. Jerry Brown. At the symposium, Justice Liu joked that he wouldn’t have believed when he was sworn in 13 years ago that he would one day attend a sold-out conference with an overflow room for a symposium on state constitutions.

But this newfound enthusiasm is richly merited. When it comes to protecting rights, state constitutions can and often do offer stronger protections than the U.S. Constitution. In recent years, we’ve seen significant rulings from state supreme courts in areas such as partisan gerrymandering, abortion rights, and government takings of private property.

At the State Court Report symposium, a series of panels dug deeper into some of the areas where state constitutional law is developing most rapidly: reproductive rights, democracy and voting rights, and criminal justice. One of the biggest differences between state constitutions and the federal constitution is the ease with which state constitutions can be amended, and ballot initiatives loomed large in several of the conversations. One striking account came from retired Ohio Supreme Court Chief Justice Maureen O’Connor, who discussed a campaign she is now helping to lead to amend the Ohio Constitution to rein in gerrymandering — as well as the recent defeat by voters of a proposed amendment that would have made it harder to amend the state constitution going forward.

Participants proposed a list of needs to develop state constitutional law and bring state constitutional practice onto par with its federal counterpart. Judges and practitioners alike called for more scholarship to help move state courts beyond lockstepping their constitutions with the U.S. Constitution. New York Court of Appeals Judge Caitlin Halligan highlighted the importance of being able to access materials related to state constitutional history — materials that can be surprisingly difficult to dig up in some states. Several practitioners and academics discussed how funding difficulties and uneven access to justice pose barriers to vindicating rights in state courts. Panelists pointed out that few law schools offer even a single course in state constitutional law, and several participants urged law students to think beyond a few big cities when setting up their practices.

We’re excited to have had the opportunity to shine a spotlight on these vitally important and chronically underappreciated sources of law and rights. And if you’d like to engage more with these ideas but weren’t able to make it to the symposium, fear not! State Court Report will be sharing videos from the conference in the coming weeks, as well as other content inspired by the discussion. (We’ll also continue to cover recent cases and trends in state constitutional law — if you’d like to learn more, please sign up for our newsletter.) And in the longer term, our partners at the NYU Law Review will be publishing scholarly articles inspired by the convening. We’re looking forward to continuing the conversation.





Congress Must Act to Protect Americans’ Data

The United States lacks a comprehensive data privacy law, and data broker companies and law enforcement have been taking advantage. By using outdated legal interpretations of the Fourth Amendment, data brokers can buy sensitive personal information — the same kind of information the government often cannot get without a warrant. Data brokers, however, are free to sell the information to the government. A new Brennan Center resource

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details proposed bills that can help close this legal loophole. “Congress must intervene to bring the law in line with the modern world and end the government’s all-too-common practice of buying its way around our privacy rights,” write Elizabeth Goitein and Emile Ayoub. Read more

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Biden Can Federalize the Texas National Guard — But Shouldn’t

For the past month in Eagle Pass, Texas, the state national guard has occupied a city-owned park along the Mexican border in order to deny U.S. Customs and Border Protection access to the adjoining section of the Rio Grande. The standoff comes after the Supreme Court ruled that the government has authority to cut through razor wire Texas placed along the border. Though President Biden could invoke the Insurrection Act to force the Texas National Guard to stand down, he shouldn’t, Joseph Nunn argues in Just Security. “The Insurrection Act should be a tool of last resort, and the bar for invoking it should be particularly high in today’s fraught political environment,” he writes. READ MORE

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Progress for Voting Machines, but More Work Ahead

Secure and modern voting machines are essential for ensuring that ballots are counted as voters intend. There’s been progress — for example, nearly 99 percent of registered voters now live in jurisdictions where a paper backup is available, up from 78 percent in 2016. However, vital federal funding is unpredictable and still inadequate. Congress must address this issue, as tens of thousands of voting machines will need upgrades in the next five years. Our new resource, produced in partnership with Verified Voting, details the state of voting equipment around the country and how much money is needed to keep it up to date. Read more

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Election Denial vs. Election Certification

Attempts to derail the certification of election results didn’t end on January 6, 2021 — they merely shifted to the local and state level. In 2022, rogue local election officials in Nevada, New Mexico, and North Carolina were among those who refused or threatened to refuse to certify valid election results. But, as a new article

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in Stanford Law & Policy Review explains, such efforts have happened in our country’s past. Lauren Miller and Will Wilder examine that history and the resulting protections put in place to make sure that the will of voters is respected. “Attacks on certification, like many election denier threats, have never been deployed on such a large and coordinated scale. But by looking to the past, we can identify the guardrails that will protect us in the future,” Miller writes on the Brennan Center website. Read more

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Congress Must Keep Up with AI

For years, Congress has struggled with limited capacity — an issue that could be mitigated by incorporating artificial intelligence tools into its work. The new installment in our AI and Democracy series

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shares how AI tools could make Congress more productive and efficient by helping lawmakers analyze issues, develop ideas for new bills, and gather information and questions from constituents. At the same time, the new resource stresses the need for quick action and appropriate guidelines to protect security and privacy READ MORE

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Events

Recording: A President Is Not a King



Watch this timely discussion with the Brennan Center’s Michael Waldman, former U.S. Attorney Joyce Vance, law professor Aziz Huq, and legal historian Holly Brewer as they analyze the importance of the DC Circuit Appeals Court’s ruling rejecting Donald Trump’s claim that he is immune from prosecution. The defeat for Trump is a historic ruling on a question that judges have never fully addressed. The panelists consider Trump’s impending trial for the January 6 insurrection and other criminal prosecutions, as well as the role the Supreme Court may play. WATCH NOW

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Gowri Ramachandran on the confusion surrounding Nevada’s caucus structure // PROPUBLICA

Daniel Weiner on AI-generated deepfakes // NPR

Tom Wolf on the DC Circuit Appeals Court’s ruling on Trump’s immunity // BLOOMBERG

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