Jake Mazeitis & Melissa Hart, The Role of State Justices in Advancing State Constitutional Law: Some Thoughts from Colorado, 2024 Wis. L. Rev. 1447 (2024).
Commentators and jurists alike have long criticized advocates for
failing to raise state constitutional claims. As the thinking goes, state courts
cannot interpret constitutions sua sponte; advocates need to present judges
with compelling arguments in appropriate cases. We agree that advocates are
critical to state constitutional development but are sympathetic to the ethical
and financial constraints which accompany the choice to pursue an untested
legal theory. We propose that state supreme court justices ought to take a
more active role in the development of state constitutional law, if only to
assure advocates that time spent advancing state constitutional law is not time
wasted.
This Essay contains three parts. First, we draw on data of the most
recent terms of the Colorado Supreme Court to empirically demonstrate that
advocates are consistently failing to raise state constitutional arguments, and
the state supreme court is failing to rule on them. Next, we survey the various
structural barriers inhibiting attorneys from raising potentially successful
state constitutional claims, including a lack of educational material, clients’
discomfort with using their case to test a novel legal theory, and the cost of
state constitutional litigation. Finally, we argue that state justices interested
in the development of state constitutional law can—consistent with their
ethical obligations—alleviate some of these barriers by commenting on and
writing about the importance of state constitutions and the need for state
constitutional litigation.
