The Volokh Conspiracy

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My Review of Judge Sutton's New Book in the Wall Street Journal

‘Who Decides?’ Review: The Supreme Court, the States and the Contest for Control


The Wall Street Journal invited me to review Judge Sutton's new book, Who Decides?: States as Laboratories of Constitutional Experimentation. The review will be published in the weekend edition of the Journal. Here is a snippet:

Recently the Supreme Court halted the federal vaccine-or-test mandate by a 6-3 vote. This split can be explained along the usual ideological lines. The six conservatives blocked the requirement, while the three progressives approved it. But the votes can be more naturally split based on a single, evergreen question: Who decides? Indeed, that question was posed in both Justice Neil Gorsuch's concurrence and the joint dissent by the court's progressives. The dissenters would have allowed the executive branch to impose the mandate. The majority held that Congress, and not bureaucrats, must expressly authorize it. Justice Gorsuch's concurrence suggested that such an intrusive power is reserved to the states and not to the federal government.

The question that hovered over the court's decision is at the center of "Who Decides? States as Laboratories of Constitutional Experimentation." Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, carefully delineates the conflicts, contests and overlapping claims between the federal government, state governments and the people. He is well-positioned to do so. For the past two decades, while serving as a federal appellate judge, Judge Sutton has become—in his spare time, as it were—an evangelist for the underappreciated importance of state constitutional law.

In "51 Imperfect Solutions" (2018), Judge Sutton showed the many ways in which the states (along with the District of Columbia) can try, often with limited success, to resolve their internal policy disputes. "Who Decides?" is a kind of sequel. Here he traces the relationship among state courts, state legislatures and state executives and explores their connections with federal courts, Congress and the presidency. Judge Sutton's account is deeply researched and offers a wealth of historical precedents and case studies. Three examples may suffice to capture the broad sweep of the book's arguments.

The three examples I give focus on the relationship between legislative and judicial gerrymanders, the delegation of the lawmaking power from legislatures to executive branches, and the conflict between state governments and the federal government.

I am reasonably confident that the references to "Who decides" in the OSHA concurrence and dissent were inspired, at least in part, by Sutton's important book. You should read it.