Justice

Eyal Press, New Yorker - In 1976, Justice William Brennan delivered a speech at the annual convention of the New Jersey State Bar Association. In the previous two decades, Brennan, who had served on the New Jersey Supreme Court for five years before Dwight Eisenhower appointed him to the U.S. Supreme Court, had written, or joined, dozens of influential opinions that broadened the rights of criminal defendants, women, Black people, and indigent Americans. Many of these decisions invalidated state laws that sanctioned racial discrimination, by augmenting the authority of the federal government. But Brennan, in his speech, endorsed an idea that seemed to move in the opposite direction, making an impassioned case for state courts to issue rulings that pushed beyond protections enshrined in federal law. “State courts cannot rest when they have afforded their citizens the full protections of the federal Constitution,” he said. “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”

As Brennan peered around the ballroom where the conventioneers were gathered, he saw the crowd thinning, and became convinced that his speech was flopping—so much so that he walked offstage before finishing it. But, the following year, his full address was published in the Harvard Law Review, and it became one of the most widely cited law-review articles ever written, inspiring what legal scholars have called “the new judicial federalism”—a movement in which state courts, citing provisions in their own constitutions, issued a flurry of decisions widening the scope of rights. Among them was State v. Novembrino, a 1987 case in which the New Jersey Supreme Court endorsed protections against unreasonable searches and seizures that were more robust than those in federal law, siding with a suspect who had been charged with possession of illegal drugs on the basis of evidence obtained through a nonconsensual search. (The decision rejected the “good-faith exception” endorsed by the Supreme Court, which critics have argued gives the police too much latitude to engage in misconduct.) Although the Constitution’s supremacy clause forbids states from violating federal rights, nothing bars them from amplifying those rights. In the decade after Brennan’s article appeared, state courts handed down more than two hundred such rulings, on issues ranging from free speech to the death penalty—a tenfold increase from the previous ten years.