Ben Glassman


The Honorable Marianna Brown Bettman’s dilemma is roughly this: if a clause of a state constitution is worded similarly to a clause in the federal Constitution, how can a state court develop constitutional law? But in important respects, Judge Bettman's question reflects a misunderstanding of the law. This misunderstanding prevents her from identifying what is really at stake in cases like the one she describes. Judge Bettman seems to have misread Michigan v. Long. The Long Court laid out a clear test for determining the Supreme Court's appellate jurisdiction over state cases where the grounds-federal or state-of the state court's decision are ambiguous. This error prevents Judge Bettman from squarely addressing the question of where state supreme court justices should rest their judgments when they might do so upon either the federal or the state constitution, or both. Although there are good reasons for the hypothetical state supreme court justice to rest her decision on the state constitution alone, I will argue that from a global perspective, the country's legal system might be best served by resting on both the federal and state constitutions. After briefly recounting the story of the Robinette case's journey through the state legal system to the federal one and back again, I will present Judge Bettman's analysis and show how she errs. Then I will consider the deeper question presented by a correct understanding of Supreme Court jurisdiction over state court judgments.