Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Justice Scalia: whether the Court should have heard the case in the first place. As he did in three cases during the Court's 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. In other words, the Court should only exercise its certiorari power over state court decisions when the state court has underenforced the federal constitutional right. Such, according to Stevens, was not the case in Marsh, in which certiorari was motivated by a desire to create uniformity in interpretation of federal law, but rather by "[n]othing more than an interest in facilitating the imposition of the death penalty."
Justice Scalia vehemently disagreed, writing that Stevens's argument rested on a "misguided view of federalism" and ignored the need for integrity and uniformity of federal law. It would create a "crazy quilt" in which each state could interpret the constitution as it saw fit so long as the interpretation gave more protection than necessary.
"Crazy quilt" is certainly an exaggeration, but there is no denying that Justice Stevens's proposal would give states new power in constitutional interpretation. Stevens's argument is reminiscent of Justice Brennan's conception of Congress's enforcement power under Section 5 of the Fourteenth Amendment as a one-way ratchet: Congress, as Justice Brennan explained in Katzenbach v. Morgan, is within its enforcement powers when it grants citizens rights greater than those required by the Constitution, and the Court should not intervene even if the rights granted are contrary to its precedent. Only when Congress attempts to move in the other direction-to infringe upon constitutionally protected rights-should the Court get involved.
Justice Stevens's argument, which I will call Stevens's Ratchet, originated in the justice's dissenting opinion in a 1983 case, Michigan v. Long. In Long, the Court greatly increased its ability to review state court decisions that may have rested on either federal or state grounds by presuming that, absent a clear statement to the contrary, such decisions do not rest upon an independent state law ground and can be reviewed by the Court. In his dissent, Justice Stevens argued against the Court's new presumption not only as bad law, but also as bad policy. The Court's scarce resources, he wrote, should not be used when a state court has purportedly interpreted federal rights too broadly. Describing the case as one that concerned the relationship between two sovereigns, Justice Stevens compared it to a prosecution that occurred in Finland rather than in Michigan. The United States might be concerned with procedure in a Finnish court that resulted in the conviction of an American, but not if it resulted in an acquittal. So too, the Supreme Court should only review state court decisions when a citizen's constitutional rights have been violated, not when they have been enforced.
In his Long dissent, Justice Stevens hoped that the Court would one day reconsider its expansion of its jurisdiction over state court decisions, but as Marsh shows, there has been no such reconsideration. Since 1983, Justice Stevens has repeatedly found himself dissenting in such cases. Before the Court's 2005 term, these dissents came once every few years, but in the most recent term, Stevens was moved to remind the Court of his view in three different cases: Marsh, Washington v. Recuenco, and Brigham City v. Stuart.
In his Marsh dissent, Justice Stevens quoted liberally from a similar dissent he wrote in California v. Ramos, decided on the same day as Long. Justice Stevens had argued that the Court should not have reviewed a decision by the California Supreme Court which held unconstitutional a jury instruction informing jurors of the Governor's power to commute a life sentence without parole. To apply his reasoning from Ramos to Marsh, Justice Stevens had only to reproduce seven passages from his Ramos dissent and substitute "Kansas" for "California." In both cases, Justice Stevens suggested that the Court's decision to grant certiorari was not motivated by a desire to answer a question of federal constitutional law, but by a desire to ease the imposition of the death penalty.
Justice Stevens's concurrence in Brigham City v. Stuart is unique among opinions expressing the Ratchet because he did not disagree with the Court's ultimate holding. He concurred in the Court's unanimous judgment-a simple holding that police had not violated the Fourth Amendment-but argued that certiorari never should have been granted. Restating the Ratchet, Justice Stevens wrote that "[f]ederal interests are not offended when a single State elects to provide greater protection for its citizens than the Federal Constitution requires."
Last term's third Ratchet case, Washington v. Recuenco, is also unique because it did not involve the interpretation of a federal constitutional right, but rather the question of the correct remedy for a concededly violated right. While the Court reversed the Washington Supreme Court's determination that a Blakely violation is a structural error requiring resentencing, Justice Stevens again argued that the Court should never have granted certiorari.
It is interesting to ask why Stevens's Ratchet came up three times during the Court's most recent term. Justice Brennan's Ratchet originated in the 1960s, when the Court was in the midst of expanding federal rights and federal powers to combat what it saw as infringements upon those rights by states. Justice Stevens, however, is propounding his Ratchet to stop a Court in the midst of a program of contracting federal rights and federal powers. If the Court were to refuse to hear state cases which overextended rights, they would have many fewer chances to roll back those rights. But Stevens's Ratchet is much more than just a liberal shield against conservative intervention on the side of prosecutors in their battles with state courts: it represents a view of the Court as an impartial enforcer of individual rights and not as an active participant in internal state battles; it also serves as an exhortation to the Court to refrain from unnecessary lawmaking.
Justice Stevens's understanding of judicial restraint is at the core of the Ratchet. It is a unique conception because it does not apply to the merits of judicial decision, but to the process. This conception is distinct from the approach to judicial restraint recently expounded upon by Chief Justice Roberts. In a commencement speech at Georgetown University, Justice Roberts told graduates that to provide better guidance to lawyers and lower courts, the Supreme Court should write opinions which embody a greater consensus. To achieve that consensus, he argued that the Court should exercise restraint and rule as narrowly as possible. Justice Stevens's process-based judicial restraint is distinct because it does not focus upon how to decide cases, but upon which cases to decide. As Justice Stevens explained in a 1982 speech, the Court should not waste its time on cases in which a state court overprotects federal rights because "the state decision affect[s] only a limited territory and [does] not create a conflict with any other decision on a question of federal law, and . . . the state court had the power to reinstate its original judgment by relying on state law."
Justice Stevens's suggestion that states may act as laboratories of constitutional interpretation was enough to provoke Justice Scalia's wrath in Marsh. Although the role of the states as laboratories of democracy is an important element of our federal system, uniform application of federal law is just as important. While Congress and the Executive have some power to determine which decisions are left to local actors and which are made at the highest levels of government, the choices have already been made for rights enshrined in the Constitution. As Justice Scalia argued in his Marsh concurrence, it is the Supreme Court's role to ensure that those choices are respected, no matter who stands to benefit, and Stevens's Ratchet would insert a small override to the constitutional division of labor between the states and the federal government. The federal government would not lose the power to enforce rights which the Constitution requires it to enforce, but it would lose the power to complain when those rights are over-enforced.
However, this exception to the division of power between states and the federal government is consistent with the constitutional role of the federal government as a protector of individual rights. To enforce the Fourteenth Amendment, the Court should only be concerned when a state does not provide enough due process, and not when it provides too much. This is exactly the one-way ratchet that the Court once applied to Congressional powers under Section 5. It not only prevents infringement of rights, but it forever disallows reinterpretations. Because the ratchet still can go the other way, Justice Scalia's fears of a "crazy quilt" are unfounded. Justice Stevens is not making an argument about how to interpret the Constitution, but when to interpret it.
Justice Stevens has demonstrated a unique view of the Court's role: the Court should not be a panel of distinguished scholars writing on whatever interesting subjects come their way, but should instead restrict its efforts to those cases where it is truly needed. The Court's intervention is not needed when the courts of Michigan, Kansas, or even Finland provide more protection to a defendant than she would receive in federal court, even if the protection rests upon constitutional law. As Justice Stevens explained in a footnote in his Marsh opinion, there is a "separate federal interest in ensuring that no person be convicted or sentenced in violation of the Federal Constitution." Applying Stevens's Ratchet would take that interest seriously.