When Do State Courts Depart from Federal Precedents?

Since the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, there has been increased interest in state constitutions as sources for protecting rights. Under our federal system, a state’s highest court is considered the final word on the meaning of its own constitution. Unless a state court’s interpretation of its constitution conflicts with the U.S. Constitution or federal law, state rulings are insulated from federal review.

This means that state courts can interpret their state’s constitution to be more protective of rights than the federal Constitution. Yet historically, state constitutions have often not functioned as independent sources of rights. Most states follow federal precedent when considering state constitutional claims, often in lockstep fashion.

When do judges separately consider state claims? This is where “departure rules” come in — rules that state courts have constructed to indicate when they will depart from federal precedent or rulings when considering state constitutional issues.

Not all 50 states have clear departure rules. Yet many, if not all, state courts have given at least some clues in judicial decisions about when they will depart from federal law. Consider the different approaches of the various states detailed below. The lack of clarity demonstrated in some of these examples complicates the ability of advocates to press state constitutional claims.

Minnesota 

Minnesota has ruled that its constitution provides more protection under its Equal Protection and Right to Conscience Clauses than found under federal law. The state may also have the clearest departure rule in the country. It was articulated in Kahn v. Griffin, a case I litigated. In Kahn, the Minnesota Supreme Court laid out a two-step process. The first step identifies two circumstances when the court will consider departing from the federal Constitution: if the language of the state constitution is different or involves a unique state right, or if the court concludes that the U.S. Supreme Court “has retrenched on Bill of Rights issues, or if we determine that federal precedent does not adequately protect our citizens’ basic rights and liberties.”

Step two provides guidance to litigants as to a nonexhaustive list of factors that are relevant to an independent state constitutional analysis:

(1) the text of the state Constitution, (2) the history of the state constitutional provision, (3) relevant state case law, (4) the text of any counterpart in the U.S. Constitution, (5) related federal precedent and relevant case law from other states that have addressed identical or substantially similar constitutional language, (6) policy considerations, including unique, distinct, or peculiar issues of state and local concern, and (7) the applicability of the foregoing factors within the context of the modern scheme of state jurisprudence.

Washington State

Washington State has also articulated departure rules. First, the Washington Supreme Court has said that if both federal and state claims are raised, it will consider the state claims first and only go on to consider the federal ones if the issue is not resolved with the former.

Second, the Washington Supreme Court, similar to Minnesota’s high court, has enunciated a series of factors to consider when asked to provide independent analysis that would offer greater protections as compared to the U.S. Constitution or rely on unique state constitutional provisions. In State v. Gunwall, the court articulated six nonexclusive factors similar to Minnesota’s, which describe when it will give greater protection under the Washington Constitution:

(1) the textual language of the state constitution, (2) differences in the texts of parallel provisions of the federal and state constitutions, (3) state constitutional and common law history, (4) preexisting state law, (5) structural differences between the federal and state constitutions, and (6) matters of particular state interest or local concern.

New Jersey

New Jersey has long been noted as an innovator and leader in state constitutional jurisprudence. In cases such as State v. Melvin, where the court addressed the use of acquitted conduct in sentencing, the New Jersey Supreme Court has declared that the federal Constitution provides the floor for the protection of rights but that its own constitution can provide additional protections. It has departed from the federal Constitution in several areas, including criminal due process and free speech rights, but it has not articulated a straightforward departure rule.

When it comes to equal protection and reproductive rights, the New Jersey Supreme Court has stated that “where an important personal right is affected by government action, [our] Court often requires the public authority to demonstrate a greater ‘public need’ than is traditionally required in construing the federal constitution.” The court has not clearly articulated what counts as an important personal right, but in the due process context, it has said respecting “fundamental fairness” is critical to making that distinction or argument.

New York

New York’s Court of Appeals is a national leader when it comes to state constitutional law and has held many times, such as in People v. Aviles and Hernandez v. Robles, that the state constitution often provides more protections for rights than the federal Constitution. However, the court has noted that when it comes to free speech or equal protection, this is not automatic. The court hasn’t articulated a general departure rule to indicate when more protection would apply.

In the case of privacy as it relates to searches and seizures, the court of appeals offered a departure rule in the 2009 case of People v. Weaver: “when doing so best promotes ‘predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.’” In Weaver, the court found persuasive that several other states had previously ruled that a warrant was needed to place a GPS tracking device on a car. This New York decision came four years before the U.S. Supreme Court reached a similar conclusion under the Fourth Amendment in United States v. Antoine Jones.

Florida

The Florida Supreme Court declared in State v. Kelly that the “United States Constitution generally sets the ‘floor’ — not the ‘ceiling’ — of personal rights and freedoms that must be afforded to a defendant by Florida law.” The court further argued in Traylor v. State that Florida courts “are bound under federalist principles to give primacy to our state Constitution and to give independent legal import to every phrase and clause contained therein.”

Florida cases have not generally articulated a clear departure rule, but the court has been receptive to departure arguments rooted in state historical practice. In the case of whether the prosecution may refer in trial to a defendant’s silence during a pre-arrest question, the Florida Supreme Court in State v Horwitz ruled no. The court cited the Florida Constitution’s long history of protecting the right against self-incrimination. It also cited similar rulings in other states.

The court also appealed to long historical practices in Hurst v. State, where it ruled that under the Florida Constitution, there was a requirement for unanimity for death penalty jury verdicts. In that case, the court also noted that it was one of only three states that still had the death penalty without requiring a unanimous verdict.

South Carolina

Similar to the other states discussed here, the South Carolina Supreme Court declared in State v. Easler that “state courts may afford more expansive rights under state constitutional provisions than the rights which are conferred by the Federal Constitution.” 

South Carolina offers an example of how state constitutional provisions that do not have federal analogues can impact state courts’ analysis. In State v. Forrester, the South Carolina high court rejected a claim by a defendant that police had to inform him of his right to refuse a search, yet nonetheless held that the search that did occur violated the state constitution’s protection of a right to privacy. Critical to its departure from federal precedent was the explicit Right to Privacy Clause in the South Carolina Constitution, the state’s long commitment to privacy, and an examination of the jurisprudence of other states that also had explicit privacy clauses.

The South Carolina Supreme Court drew upon its Right to Privacy Clause recently in Planned Parenthood South Atlantic v. State to strike down the state’s ban on abortion after six weeks. In that case, the court again appealed to other states and how they interpreted their privacy clauses, the broad wording of South Carolina’s clause, and the historical commitment in past precedent to privacy. While noting abortion was not mentioned in its Right to Privacy Clause, the South Carolina Supreme Court distinguished its decision from U.S. Supreme Court’s decision in Dobbs, writing:

A critical part of the Dobbs Court’s justification for overruling Roe was that Roe “held that the abortion right, which is not mentioned in the Constitution, is part of the right to privacy, which is also not mentioned.” Recognizing that Roe was overturned partially based on its reliance on an unmentioned and hence arguably nonexistent constitutional right to privacy, Dobbs does not control, nor even shed light on, our decision today since the South Carolina Constitution expressly includes a right to privacy.

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This six-state survey of departure rules describes situations where state courts are willing to perform independent analyses of their own constitutions to provide more or distinct protections for individual rights compared to what is found under the U.S. Constitution and held by the U.S. Supreme Court. Some departure rules, such as those in Minnesota and Washington, are more explicit in explaining the conditions under which a state constitutional analysis will be undertaken, while in other states, litigants need to note textual, historical, or doctrinal differences in arguing their cases.

This survey is not definitive. Even within the featured states, state courts do not always apply departure rules consistently, and in some instances, departure rules may vary depending on the constitutional provision at issue. Even when applying these rules, state courts may ultimately determine departure from federal precedent is not warranted in a particular circumstance. Yet the survey highlights an essential lesson — if you plan to argue for an independent analysis of a state constitution to protect rights, examine the factors in the state at issue that influence if and when the courts will depart from federal precedent. 

David Schultz is Hamline University Distinguished Professor of Political Science and Legal Studies and University of Minnesota Professor of Law. He is the author of Constitutional Precedent in US Supreme Court Reasoning.