I have been immersed in our legal culture for more than 30 years now, and despite serving as a Georgia Supreme Court Justice for the past dozen years, I continue to be surprised at how federal-centric that culture is. Judge Jeffrey S. Sutton’s latest book, Who Decides?, works to break that mindset.

For example, as a former federal prosecutor and U.S. Department of Justice official, I have followed the debates in recent years about how much control the President should exercise over the U.S. Attorney General and the DOJ. We have a unitary federal executive who has the duty to faithfully execute the laws – but we don’t want law enforcement to be politicized. I knew that my state, quite differently, has an independently elected Attorney General, and indeed Who Decides? includes an analysis of Perdue v. Baker, a case from my Court about whether Georgia’s Governor or Attorney General has the authority to control litigation on behalf of the state. But I did not realize that 48 state attorneys general are free from their governors’ control; the federal system is the odd exception, not the model. Who Decides? is full of such examples – like the anomaly of life tenure for federal judges.

Judge Sutton’s first book on comparative constitutional law, 51 Imperfect Solutions, dealt with individual rights, a field in which the U.S. Constitution’s Supremacy Clause gives federal constitutional rights authority over their state constitutional analogues. Who Decides? is about the comparative structures of the federal and 50 state constitutions, a field in which the state systems are almost entirely independent and authoritative. The state systems need to be better understood by lawyers and the public, in part because more than 90% of litigation occurs in state courts. But the various state schemes for divvying up power also should be understood as providing examples – good and bad – for judges seeking to apply the often less detailed structural principles of the federal constitution.

Judicial review, for example, is always a hot topic. Who Decides? reminds readers that judicial review did not spring full-born from Chief Justice John Marshall’s head in Marbury v. Madison, as so many Americans are taught, but rather developed in many state courts over the preceding decades. Judge Sutton convincingly demonstrates that judicial review was developed and implemented in the state courts as a cautious and limited doctrine. Indeed, my favorite aspect of this book is the analogy he draws between judicial review and legislative gerrymandering. Putting aside any legal restrictions on the practice, most Americans dislike the concept of legislators unilaterally deciding who gets to vote for them. Judicial review can similarly be viewed as judges unilaterally deciding which issues will be taken away from the democratic, legislative process. People don’t complain much about a compact legislative district that follows traditional boundary lines – or when judges determine that a statute violates a constitutional right squarely rooted in text and tradition. But people don’t like districts shaped like amoebas, and judges should be most wary of judicial review based on rights found not in text or tradition but only in amoeba-like “emanations” and “penumbras.”

Judge Sutton is a prophet in the reemergence of state constitutional law in state high courts and law schools as well as the federal courts. As judges, lawyers, law students, and everyday Americans explore this subject, Who Decides? will join 51 Imperfect Solutions as required reading.

--David E. Nahmias, Chief Justice, Supreme Court of Georgia

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