Document Type

Article

Publication Date

2024

Abstract

Justices Louis Brandeis and William Brennan, Jr. were two of the most influential U.S. Supreme Court Justices in shaping American state constitutional law and federalism. They imparted complementary, but also competing, visions of constitutional federalism. On the one hand, Justice Brandeis popularized the notion that States serve as laboratories of democracy for social and economic change. His idea of laboratories emphasized state lawmakers, as opposed to federal lawmakers, were best positioned to experiment with public policy under state law without risk to the entire nation. Justice Brennan, by contrast, argued that state courts, rather than federal courts, were best suited to experiment with the rights protections under state, rather than federal, constitutional law. This highlights a dichotomous tension between Brandeisian laboratories of democracy and Brennanian laboratories of rights.

The structure of state courts, however, has made it increasingly difficult to identify and distinguish the unique features of laboratory federalism when examining judicial federalism. Scholars have overlooked the inherent complexities and contradictions that arise at the intersection of courts, rights, and democracy. State courts occupy a multiplicity of spaces and roles. They are politically accountable bodies responsive to the electorate. They are expected to be neutral and impartial arbiters of the law empowered to interpret their state constitutions with an objective eye towards justice. While tasked with this neutrality, these same state courts are institutions authorized to wield unique and influential powers. For example, they are capable of independently resolving social, economic, and political problems traditionally reserved for legislatures, using their procedural, rulemaking, and administrative authority. These functions, distinct from those of federal courts, encompass a diverse range of responsibilities that enable state courts to perform as counter-majoritarian checks while also serving as politically accountable elected officials representing their constituents. This seemingly irreconcilable paradox raises fundamental questions about American judicial federalism.

This Essay explores these paradigmatically incompatible functions of state courts—rights expositors and protectors and democratic agents and representatives—and seeks to reconcile the tension. It argues that rights-based (Brennanian) laboratories and democratic-based (Brandeisian) laboratories are not inherently in tension but are, in fact, harmonious manifestations of the concept of judicial laboratories of democracy and elements of a state court-oriented theory of popular constitutionalism. This governance model enhances judicial legitimacy by empowering citizens to elect judges who reflect popular opinion, while simultaneously enabling state courts to function as judicial laboratories of democracy. These laboratories are capable of experimenting with tools such as procedural discretion, rulemaking authority, and administrative powers to tackle social, economic, and political issues traditionally addressed by state lawmakers, issues that are often beyond the reach of federal court review. This symbiotic relationship between the electorate (constituents) and elected officials (judges) blurs—if not entirely erases—the distinction between conventional views of legislating and traditional notions of judging.

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