Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to “reject” a decision of the U.S. Supreme Court, because no “sound reasons justif[ied] following” it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought “at the very least to ‘freeze’ the state’s . . . law to prevent” state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious attempts by states to reject or nullify federal court decisions, these state laws and decisions remain in effect. How can this be?
The reason is simple enough: the Supremacy Clause is not a binary switch. Without complete preemption, our system of federalism leaves room for state law to supplement or stand alongside federal law. States often use that freedom to depart from federal law by passing laws or issuing judicial opinions that explicitly reject specific opinions issued by the U.S. Supreme Court.
This Article documents and analyzes that phenomenon of state rejection of federal caselaw, which has not received systematic scholarly attention. Analyzing states’ reactions to three federal cases—Illinois Brick Co. v. Illinois, Kelo v. City of New London, and Lujan v. Defenders of Wildlife—allows for a novel analysis of the causes and consequences of this phenomenon. These varied examples show that there is no single explanation for state law rejecting federal law, nor is it even always carried out by the same institutional actor. Similarly, the pathologies and virtues that result from divergent state and federal law vary considerably across legal contexts.
That states reject the decisions of federal courts has both practical and theoretical consequences for our understanding of federal courts’ influence on state law. As a practical matter, the examples comprise a playbook for state decisionmakers seeking to extend, supplement, or transcend the limitations of federal law. In an era of increasing and anticipated clashes between courts and legislatures, rejecting federal caselaw is one
way that democratic majorities can reduce the practical impact of federal court decisions.
More broadly, this phenomenon resonates with theoretical accounts of how legal systems’ rejection of precedent from other jurisdictions can shape domestic law. The act of defining law aversively to that of another sovereign leaves a lasting mark. States that reject the decisions of federal courts exhibit difference from federal law as an important strain of state law. Rejection of federal law therefore sows the seeds of its own future growth.
Thomas B. Bennett,
State Rejection of Federal Law,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol97/iss2/6