Justice David Souter and state constitutional law

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Among scholars who study state courts and state constitutions, Justice David Souter was notable for the experience at the state level that he brought with him to the Supreme Court. (Photo by)
Following retired U.S. Supreme Court Justice David Souter's passing last month, commentators memorialized the justice with appreciations of his analytical acumen and commitment to the role of neutral arbiter.
Steven Vladeck, for instance, praised Souter for 'just how seriously he took his job as a justice — and a judge.' At the same time, however, as longtime Supreme Court observer Linda Greenhouse noted in The New York Times, Souter's 'name was on so few significant opinions and his profile at the court was so low that after his first few years, legal academia essentially stopped paying attention to him.'
Not all of legal academia.
Among scholars who study state courts and state constitutions, Souter was notable for the experience at the state level that he brought with him to the Supreme Court. During his tenure as a member of New Hampshire's highest court, that court contributed to the development of state constitutional law in significant ways. The Granite State stood at the forefront of the jurisprudential phenomenon known as the 'new judicial federalism' — the practice of state courts interpreting the individual rights provisions of their own constitutions independently of the Supreme Court's rulings on the parallel protections contained in the federal Bill of Rights.
The new judicial federalism was inspired, in large part, by an essay published in the Harvard Law Review in 1977. Alarmed by the extent to which the Supreme Court was retreating from the robust protection of individual rights under the federal constitution, Supreme Court Justice William Brennan reminded readers that '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.'
In other words, individuals and advocates should consider, in appropriate cases, the depth and reach of state constitutional individual rights provisions.
The New Hampshire Supreme Court heard Brennan's call. In its 1983 decision in State v. Ball, the high court held that, when state constitutional issues are properly raised, the state courts have 'a responsibility to make an independent determination of the protections afforded in the New Hampshire Constitution.' To ignore this obligation, the court continued, would be to fail in the duty to defend the state constitution, which in turn would undermine 'the federalism that must be so carefully safeguarded by our people.'
A commitment to the independent interpretation of the state constitution necessarily entails the development of approaches and modes of analysis suited to that particular constitutional context, which Justice Souter recognized in a 1986 case, State v. Bradberry. Souter had been appointed to the high court when the court issued its opinion in Ball, but he did not participate in the decision. Bradberry thus presented an opportunity for him to explain the stakes for state constitutional law in individual rights cases: 'If we place too much reliance on federal precedent,' he wrote, 'we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent. If we are going to steer between these extremes, we will have to insist on developed advocacy from those who bring the cases before us.'
Justice Souter's plea for support from the bar in state constitutional cases continues to resonate. In our treatise on state constitutional law, 'The Law of American State Constitutions,' my co-author Bob Williams and I referred to Souter's opinion in Bradberry as a definitive statement on the matter. In the book, we echoed the perspective articulated in his opinion: State courts that rely wholly on federal law in interpreting their state constitutional rights protections risk diminishing those protections, while too little respect for federal precedent risks isolating a state's law from the larger, national discourse about the meaning of common individual rights provisions.
His experience with state constitutional law and the new judicial federalism distinguished Justice Souter's career from that of most of his fellow U.S. Supreme Court justices, and the New Hampshire Supreme Court's commitment to fostering independent state constitutional interpretation in State v. Ball has distinguished it from other state courts.
In Bradberry, Justice Souter maintained that the commitment represents but an initial step toward reckoning with state constitutional text. In ascertaining the meaning of the state's charter, Souter advised, the state's courts should expect to rely on counsel representing each side of a case to illuminate the text.
Such advocacy allows judges to consider the full range of interpretive possibilities that may lie in particular provisions of the New Hampshire Constitution — and creates an alternative to relying exclusively on the views of nine judges in Washington, D.C., who are tasked with construing a similar but fundamentally different constitution