The Liman Public Interest Law Program at Yale Law School and the National State Attorneys General Program at Columbia Law School have combined to publish the papers from the 11th Annual Liman Colloquium held at Yale Law School on March 6 & 7, 2008. The collection is titled “Why the Local Matters: Federalism, Localism and Public Advocacy." It contains contributions from many leading lights, including Brooklyn Professor and ACLU President Susan Herman; NYU Professor Norman Dorsen; UVA Professors Risa Goluboff and Richard Schragger; Yale Professor Judith Resnick; Columbia Professor Gillian Metzger; Indiana Supreme Court Justice Randall T. Shepard; and Supreme Judicial Court of Massachusetts Chief Justice Margaret H. Marshall.
I tell you this, of course, because we have a leading light of our own: Chief Justice (ret.) of the Connecticut Supreme Court, Ellen Ash Peters. Her essay, “What are the Locals Up To? A Connecticut Snapshot” (pp. 129-35) fits well within the volume’s broader themes exploring the role of different levels of government in promoting vigorous protection (and appropriate expansion) of individual rights. It would be easy, of course, simply to celebrate Connecticut’s path-breaking role in affording individual rights that extend beyond those guaranteed under federal law. Indeed, Chief Justice Peters draws attention to just the right cases for a scholar seeking to show the boldness of our state courts. Thus, she reminds us that Connecticut police face a stiffer challenge under state law than under federal law when arguing that a suspect had consented to questioning. Unlike the federal courts, Connecticut courts have not found a good faith exception to the warrant requirement for searches and seizures. The Connecticut Supreme Court found famously in Sheff v. O’Neill that the Connecticut constitution prohibits de facto segregation in the public schools. And, most recently, in Kerrigan v. Commissioner of Public Health, our highest court rejected civil unions as a constitutional alternative to marriage for gay couples.
What is striking about Chief Justice Peters’ recitation of these cases is her emphatic rejection of any glorifying account. Instead, her article brings readers back to what she sees as our state courts’ highest calling – its relentless focus on the facts. She skillfully explains how each of the landmark rulings she describes can best be viewed as a product of close factual analysis rather than as evidence of judges reaching for overarching principles. She almost makes it seem as though the cases about which we read in the papers were really not that big of a deal. We should focus instead, Chief Justice Peters argues on how facts are found in Connecticut courts and the nearly exclusive role of the trial courts in finding such facts.
The essay is a splendid effort to pair self-evident judicial courage with genuine jurisprudential modesty. To the extent it succeeds, the way should remain paved for more such judicial courage in the future. Congratulations Chief Justice Peters. The Connecticut legal community has yet one more reason to be in your debt.