The Honorable Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, joined the show to discuss his new book, Who Decides? States as Laboratories of Constitutional Experimentation.
The book comes as a sequel to his 2018 book, 51 Imperfect Solutions: States and the Making of American Constitutional Law. Astute listeners will notice an uncanny similarity between both book covers and my own book Power to the States: How Federalism 2.0 Can Make America Governable Again.
Both books broadly make a case for states to take back powers from the federal government. But where my book emphasized the virtues of experimentation at the policy level, Sutton’s books inspect the balance of powers between federal and state judiciaries. The cover of his book, arranging the outlines of each state under the capitol rotunda, foreshadows his argument that federal courts have assumed too much power to decide what count as constitutional rights.
While this may sound like a classic argument for judicial deference to the legislative and executive branches, Sutton defends a more “activistic” approach to judging at the state level. He points out that the true precedent for judicial review was not Marbury v. Madison, as we all learned in high school civics, but in the many cases preceding it in the states that established the judiciary’s role in deciding which law should apply: the “higher” law of the state constitution, or the laws passed by the legislature.
Today, as the Supreme Court increasingly weighs in on partisan topics like vaccine mandates, it’s especially important that we frame the issue correctly: it’s not a question of how we or the judges feel personally about the outcome, but about who decides.
'Who Decides?' Review: The Supreme Court, the States and the Contest for Control
Recently the Supreme Court halted the federal vaccine-or-test mandate by a 6-3 vote. This split can be explained along the usual ideological lines. The six conservatives blocked the requirement, while the three progressives approved it. But the votes can be more naturally split based on a single, evergreen question: Who decides?