Fascinating stuff issued from the Supreme Court today. Milbarge, PG, I'm sure you and I will disagree about Randall v. Sorrell (the Vermont campaign finance case) in due time. (While I think Eugene Volokh's defense of Buckley is the most compelling one I have read, I think the entire Vermont regime was probably unconstitutional, and that Thomas, Scalia, Kennedy, and Stevens are right that at this point the Buckley framework has led to more errors than it is worth.)
In the meantime, I think that the opinions to read are Justice Scalia's concurrence in Marsh as against Stevens's dissent in Marsh and in Recuenco. This debate, which I have previously discussed back at Crescat, is whether the Supreme Court ought to be taking cases from state supreme courts when those courts make an arguably-erroneous interpretation of the federal constitution, but any error would benefit the criminal defendant. Justice Stevens's position is that there is no point in taking those cases, because no harm is done if a state court decides to use federal law to let somebody go free. Scalia's response is that rights talk can cut both ways. If state supreme courts are taking the federal Constitution's name in vain, then that is a legal error too. I almost hoped Scalia would mention "active liberty".
It seems to me that Justice Stevens is way off base here. Stevens is right that until the early 20th century, the Judiciary Act didn't give the Supreme Court jurisdiction to hear appeals in cases like this-- where the state court used the federal constitution to strike down a state law or practice. But what that meant was that when a contested question arose, the Supreme Court wasn't able to hear the case and resolve the issue until some state, somewhere, had upheld the law. If the state courts were united, then the Supreme Court couldn't stop them even if they were totally wrong. This also meant that a case frequently couldn't reach the Court until a great deal of momentum had built up on the other side of the question. Now if one thinks that striking down laws is generally a good thing, and the Court should err on the side of increasing activism, this posture may make some sense. But to most scholars at the time, this seemed crazy, which is what prompted Walter Dodd and others to lobby for the reform of the Judiciary Act. Which, thank heavens, we now have.
So now Justice Stevens wants to bring back as a doctrine of comity what Congress has eliminated as a doctrine of jurisdiction. I think the idea is almost as bad. [It is true that state courts have license to protect individual rights against state intrustion via broad interpretation of the state constitution, and as a general rule I think there is nothing at all wrong with that. State constitutions have different histories, texts, and animating purposes than the federal one, and as I mentioned once at the Conglomerate, the institutional posture of state supreme courts may rightly give them reason to be less deferential to the legislative and executive branches than the federal courts are.]
But indifference between what source of law (federal constitution or state) is used to produce the same result is legal realism at its worst. It is bad first of all because it makes it too easy for judges to play shell-games with those who make law. The people of Kansas retain control over the Kansas Constitution, and can amend it to correct judicial mistake. The Eighth Amendment to the Federal Constitution is, for all practical purposes, out of play. It is bad second of all because it misunderstands the nature of the judicial process-- to resolve disputes by applying legal rules derived from texts or the common law, not to look around for a rule to justify one's preferred result.
But I'm rambling. PG, Milbarge, what do you think of the Stevens Nullification Doctrine? Or am I making tempests out of teapots?