Explaining State High-Courts' Selective Use of State Constitutions

Although state constitutions offer substantial policy-making opportunities, state courts are reluctant to base decisions on independent state constitutional law. Using state high-court judicial review decisions from 1981 to 1985, we tested a model predicting countermajoritarian state-law rulings. Legal and political variables best predicted state constitutional decisions. Intragovernmental conflicts were particularly likely to result in state-law decisions, while courts were especially reluctant to base civil liberties decisions on state constitutions. Cases brought by government officials were likely to be decided on state constitutional principles; state-law decisions were also likely to emerge from conservative states and states with tradilionalistic political cultures. Although these latter findings stand apart from previous research connecting some forms of judicial activism to liberal political environments, they seem consistent with the element of American conservatism seen particularly in traditionalistic states (in the South and Southwest) demanding protection of state autonomy in the realms of policy development historically left to the states.