Nearly a century ago, Justice Louis D. Brandeis’s dissent in New State Ice Co. v. Liebman coined one of the most profound statements in American law: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis reminded us of our strong tradition of federalism, where the states, exercising their sovereign power, may choose to experiment with new legislation within their separate jurisdictions without the concern that such experiments would risk damaging the rest of the Nation.
Decades later, Justice William Brennan advanced Brandeis’s thesis by calling on state courts to grant greater protections to civil liberties under their state constitutions than the United States Supreme Court has granted under the federal Bill of Rights. As Brennan wrote in his dissenting opinion in Michigan v. Mosley, states have the “power to impose higher standards . . . under state law than is required under the Federal Constitution . . . . [And are] increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court.” This “New Judicial Federalism” emphasized the central role that state courts and state constitutions played in filling the individual rights gap when the Supreme Court failed to protect certain rights under the federal Constitution.
Justices Brandeis and Brennan’s statements were not explicitly directed at voting rights, although we could understand their visions to implicitly include states’ experimentation with the right to vote. Still, their visions of federalism—the former focused on state legislatures and the latter on state courts—are salient today. Indeed, the bedrock principles of democracy over the last several years—especially since the 2020 presidential election—have been tested in unprecedented ways. The 2020 presidential election ushered in a new era of judicial federalism where state courts were called upon to serve as bulwarks of democracy to preserve the integrity of elections and to protect the right to vote. State courts continue to be thrust into the political thicket of elections and forced to decide the fate of many at local, state, and federal electoral contests. The sheer volume of litigation challenging the 2020 election results tested the strength and resolve of our institutions and pushed state courts to the brink. These events have given rise to a new kind of laboratory of democracy.
This modern conception of democratic laboratories rests on the notion that state courts, now more than ever, are increasingly serving distinct dual roles. First, state courts increasingly function as explicit defenders of democratic values and principles in the face of subversive state legislatures and other bad-faith political actors and organizations. Second, state courts are experimenting with and expanding upon innovative legal doctrines in their judicial laboratories that promote democracy. Accordingly, America’s new laboratories of democracy—state judiciaries—are becoming some of the most reliable contemporary protectors of and contributors to democracy.
Gerald S. Dickinson,
The New Laboratories of Democracy,
Fordham Law Voting Rights & Democracy Forum
Available at: https://scholarship.law.pitt.edu/fac_articles/571