In May 2022, the State Democracy Research Initiative hosted a conference on Interpretation in the States, in collaboration with Professors Leah Litman (University of Michigan Law School), Victoria Nourse (Georgetown University Law Center), and Kate Shaw (Cardozo School of Law). Legal scholars and state supreme court justices convened to discuss pressing questions of legal interpretation—constitutional, statutory, and regulatory—that arise at the state level.
While countless academic works explore questions of interpretation at the federal level, far fewer focus on state-level interpretation. A primary goal of this conference was to highlight some of the distinctive interpretative issues facing state courts and to consider whether and how state-level interpretative approaches and methodologies should differ from those that prevail at the federal level.
A panel on Interpretation in the States: Views from the Bench highlighted perspectives of state high court judges, who shared interpretive dilemmas they’ve confronted and identified aspects of state law that warrant greater attention from scholars and the public. Meanwhile, academic panels explored interpretive methods, interpretation of state and federal constitutions, and other interpretative questions affecting state institutions. Essays from conference participants will be published in a special issue of the Wisconsin Law Review in November 2022.
Interpretation in the States: Views from the Bench
Robert Yablon (University of Wisconsin Law School) moderated a panel of five state supreme court justices: Justice Anita Earls (North Carolina Supreme Court), Justice Brian Hagedorn (Wisconsin Supreme Court), Justice Jill Karofsky (Wisconsin Supreme Court), Justice Laurie McKinnon (Montana Supreme Court), and Justice Elizabeth Welch (Michigan Supreme Court). Each justice began by reflecting on a case or conflict that presented a significant interpretive question.
Justice Earls discussed State v. McLymore, where the North Carolina Supreme Court interpreted a felony disqualifier provision of the state’s stand-your-ground law. The prosecution had argued that a self-defense instruction should not be provided because the defendant was unlawfully in possession of a firearm. Driven in part by a desire to avoid the absurdity of categorically prohibiting anyone with a prior felony conviction from using a firearm in self-defense, the court interpreted the disqualifier provision to require a causal nexus between the disqualifying felony conduct and the act of self-defense. Absent such a requirement, anyone with a prior felony conviction would have been categorically prohibited from ever using a firearm in self-defense, which the court regarded as an absurd result that the legislature did not intend.
Justice McKinnon indicated that in her view, rules of interpretation are an important part of the rule of . She also highlighted the role of separation-of-powers principles in several matters before the Montana Supreme Court. For instance, after the court took up a challenge to a bill that would abolish the state’s Judicial Nominating Commission and give the governor the power to fill judicial vacancies, the legislature subpoenaed thousands of emails between the state high court justices and the court administrator. The court issued an order to stop these emails’ release, which the state Attorney General opined was not binding on the legislature. The legislature, in turn, filed a motion to disqualify all of the justices on the subpoena case. Justice McKinnon authored an opinion denying this motion for disqualification, citing to a “fundamental right” under the Montana Constitution that “[c]ourts of justice shall be open to every person”.
Justice Hagedorn observed that the Wisconsin Supreme Court has increasingly found itself facing interpretive questions in politically charged cases. Building off Justice McKinnon’s remarks, Justice Hagedorn also pointed to separation-of-powers issues in Wisconsin. For example, he noted that the court has considered disputes involving the Governor’s line-item veto as well as questions regarding whether local governments are subject to the non-delegation doctrine. Justice Hagedorn urged academics and advocates to be mindful of originalist interpretations, including of state constitutional provisions.
Justice Welch discussed challenges that state supreme courts face in the context of redistricting cases. In Michigan, voters established an independent redistricting commission via ballot initiative in response to extreme gerrymandering. Like other redistricting entities, the commission got a late start due to delays in the release of the post-2020 U.S. census data. The commission filed an emergency request seeking additional time to complete its work, which the Michigan Supreme Court rejected. Justice Welch indicated that one difficulty in cases such as this one is that the public might not fully understand the reasoning behind the court’s decision. She explained in her concurrence that the court’s hands were tied because the commission had not yet missed a deadline, which was a prerequisite for granting relief.
Justice Karofsky focused on the case of State ex rel. Kalal v. Circuit Court for Dane County. Kalal, which is among the most cited cases in Wisconsin because it outlines the court’s approach to interpreting statutes. Under Kalal, only where the text is ambiguous may the court look to other indicia of meaning. Yet, as Justice Karofsky pointed out, the word “ambiguous” can itself be ambiguous. Therefore, implementation of Kalal can sometimes involve judicial discretion, even when the court is not explicitly exercising discretion. Justice Karofsky suggested that courts at times would do well to focus more directly on what justice requires.
The justices then spoke about the resources they have relied upon for state-level interpretation, and the kinds of interpretive questions that would benefit from deeper academic engagement. Various justices emphasized that it can be helpful to examine how other states have interpreted similar laws or provisions, even though states’ legislative and judicial processes can differ significantly.
Interpretation in the States: Academic Panels
Academic panels exploring four conference themes featured the following conference papers and discussants.
Panel 1: Interpretive Methods: Beyond Textualism.
- Modified Textualism in Wisconsin: A Case Study, by Anuj Desai (University of Wisconsin Law School); introduced by discussant Victoria Nourse (Georgetown University Law Center).
- The Textualist Canons in Contract Cases: A Preliminary Study, by Ethan Leib (Fordham University School of Law); introduced by discussant Anuj Desai.
- Improving (and Avoiding) Interstate Interpretative Encounters by Aaron-Andrew Bruhl (William & Mary School of Law); introduced by discussant Nina Varsava (University of Wisconsin Law School).
Panel 2: Interpreting State Constitutions.
- The Uses of History in State Constitutional Law by Maureen Brady (Harvard Law School); with commentary by discussant Ajay Mehrota (ABF/Northwestern Pritzker School of Law).
- Unreasonable Regulation: Interpreting the Police Power in American Constitutional Law, by Daniel Rodriguez (Northwestern Pritzker School of Law); introduced by discussant Leah Litman (University of Michigan School of Law).
- Lockstepping and Constitutional Fidelity, by Anthony Johnstone (University of Montana Alexander Blewett III School of Law); with commentary by discussant Joshua Braver (University of Wisconsin Law School).
Panel 3: Interpreting Constitutions, State and Federal.
- Remedial Commandeering and Indian Law, by Matthew Fletcher (Michigan State University College of Law) and Randall Khalil; introduced by discussant Bridget Fahey (University of Chicago Law School).
- State Constitutional Conventions and the Meaning of Republicanism, by Bertrall Ross (University of Virginia School of Law); with commentary by discussant David Schwartz (University of Wisconsin Law School).
- Textualism, Judicial Supremacy, and the Independent State Legislature Theory, by Leah Litman (University of Michigan School of Law) and Kate Shaw (Cardozo School of Law); introduced by discussant Carolyn Shapiro (Chicago-Kent College of Law).
Panel 4: Interpretation and State Institutions.
- Interpreting Initiatives Sociologically, by Glen Staszewski (Michigan State University College of Law); introduced by discussant Olatunde Johnson (Columbia Law School).
- Voting and the Views of Judicial Candidates: Polarization and Voter Choice in State Supreme Court Elections, by Jane Schacter (Stanford Law School); with commentary by discussant Ryan Doerfler (Harvard Law School).
- Countering the New Election Subversion: The Democracy Principle and the Role of State Courts, by Jessica Bulman-Pozen (Columbia Law School) and Miriam Seifter (University of Wisconsin Law School); introduced by discussant Kate Shaw (Cardozo School of Law).