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April 5, 2012
Judge Jeffrey S. Sutton Advocates More Emphasis on State Constitutional Law

Judge Jeffrey S. Sutton

Opening with a timely Final Four basketball analogy, Federal Appeals Court Judge Jeffrey S. Sutton on Wednesday compared the common practice of lawyers concentrating constitutional litigation on federal issues – to the exclusion of state constitutional claims – with a basketball team opting to only take one foul shot when they are entitled to two.

“Why is it that … so many American lawyers refuse to take both shots given to them,” Judge Sutton said. “Any time that someone is unhappy with a state or local law, they have two chances, not one, to invalidate it. They can rely on the federal constitution, or they can rely on the state constitution.” 

Judge Sutton, of the U.S. Sixth Circuit Court of Appeals, presented “In Praise of State Constitutions” at the Supreme Court of Ohio’s latest Forum on the Law lecture series to an audience of about 200 guests in the Courtroom at the Thomas J. Moyer Ohio Judicial Center.

The program was co-sponsored by the Columbus Lawyers Chapter of the Federalist Society and the Thomas J. Moyer Ohio Judicial Center Foundation.

Judge Sutton champions the cause of taking state constitutions seriously and during the forum he spoke about the untapped potential of state constitutions.

“I could teach an entire case on state constitutional law based solely on the cases I have lost at he Ohio Supreme Court,” joked Judge Sutton, a former state solicitor for the Ohio Attorney General’s Office who has argued multiple cases before the Supreme Court.

Judge Sutton predicted that in the coming decades there will be greater legal and jurisprudential emphasis on state constitutions, which he said will have several salutary effects, including placing less pressure on the U.S. Supreme Court and at the same time strengthening overall federal and state jurisprudence.

He attributed the tendency to emphasize federal constitutional law to several factors, including a lack of general understanding, an emphasis on federal law in legal education, that state constitutional law is viewed as too parochial by law faculty, and that the U.S. Supreme Court under Earl Warren expanded the reach of the federal constitution to the diminishment of state constitutions.

Judge Sutton argued before the U.S. Supreme Court 12 times and prevailed in 9 of the cases. He appeared before the Ohio Supreme Court 10 times, including DeRolph v. State of Ohio, a historic school funding case.

Judge Sutton took his seat on the appellate court in 2003. Before that, he was a partner with the law firm of Jones Day Reavis & Pogue in Columbus and served as State Solicitor of Ohio. He also was a law clerk to the Honorable Lewis F. Powell Jr. (Ret.), the Honorable Antonin Scalia and the Honorable Thomas J. Meskill.

He co-authored “State Constitutional Law, the Modern Experience” that was published in 2010. He graduated from Williams College and the Ohio State University College of Law, where he has been an adjunct professor since 1994. He also teaches at Harvard Law School.