I’ve been wanting to write about this issue for a while now, but it’s a dense topic and I haven’t had the time to do it justice. Until now. There is a lot of concern about the US Supreme Court, the recent decisions it has made, and the upcoming decisions it will still make. And with good reason. It’s a scary time for some folks. But the US Supreme Court is not the only game in town, as they say. State courts have the ability to protect rights that the federal courts either can’t or won’t protect under their state constitutions. Case in point is my own state of Washington.
The Washington Supreme Court has done a lot in the last several years under the state constitution or its own authority as the head of the state judicial branch to chart a different course, especially on issues involving racial equity and individual rights. There’s still a lot of work left to be done, but I think it’s worthwhile to talk about what the court has done, even as the federal courts have gotten more conservative.
First, the makeup of the court is unusually diverse. There’s nine members, and only one of them is a white male. Pretty crazy, right? There’s seven women and two men. Two openly LGBTQIA+ justices. Four justices of color, including a black woman who is an immigrant and disabled, a Native American woman who is Jewish, an Asian/Latinx woman who is also Jewish, and a Latinx man who happens to be Chief Justice. I sometimes stop and look at this court and just marvel. But that’s only part of what makes this court special.
Several days ago, Seattle Times reporter David Gutman wrote a detailed profile of the court and the actions it has taken in recent years to combat racism in the justice system. For decades, the court has overseen several commissions and task forces focused on gender and racial equity. (Full disclosure—I was recently appointed to the Supreme Court’s Gender & Justice Commission.)
In 2018, the Washington Supreme Court held the state’s death penalty laws were unconstitutional under article I, section 14 of the state constitution because they were imposed in an arbitrary and racially biased manner. The analysis in this case shows just how powerful state supreme courts can be in interpreting their state’s constitution.
Article I, section 14 of the Washington Constitution prohibits excessive bail, excessive fines, and most relevant for our purposes here, “cruel punishment.” The court noted that it has “repeatedly recognized” the state’s cruel punishment clause often provides greater protection than the Eighth Amendment. It explained that where the framers used different language than the US Constitution, the court does not need to assume the framers intended an identical interpretation. In the case of article I, section 14, the framers used only the word “cruel” and not “cruel and unusual” as used in the Eighth Amendment to modify the word “punishment.”
To conclude its analysis of the differences between article I, section 14 and the Eighth Amendment, the court explained that it believed Washington’s death penalty scheme also violates the Eighth Amendment. However, court emphasized the federal constitution was not the basis for its ruling:
Let there be no doubt—we adhere to our duty to resolve constitutional questions under our own constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.
State v. Gregory, 192 Wn.2d 1, 16-17, 427 P.3d 621 (2018). That’s a nice way to say to the US Supreme Court, “move along, there’s nothing to see here.”
The court has also used its rulemaking power as the head of the judicial branch to promulgate a General Rule about jury selection all state trial courts must follow. Unsatisfied with the Batson analysis that the federal courts use to determine if and when a potential juror was excused because of their race, the Washington Supreme Court went a different way. The court created General Rule (GR) 37 which focuses on whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” GR 37(e). The rule specifically states that the trial court “need not find purposeful discrimination to deny the peremptory challenge.”
An objective observer is one who is aware that “implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.” GR 37(f). The rule goes on to explain the different circumstances a court should consider, including whether the questioning of the minority jurors was different than white jurors, whether other jurors provided similar answers but were not the subject of the peremptory challenge, whether a party has used peremptory challenges disproportionately against a given race or ethnicity in the present case or past cases.
And in my favorite part of the rule, it goes on to define presumptively invalid reasons for using a peremptory challenge, including having prior contact with law enforcement, expressing distrust of law enforcement, living in a high crime neighborhood, having a child outside of marriage, receiving state benefits, not being a native English speaker, etc. All of these reasons (and others, no doubt) have been used by some prosecutors as code for BIPOC jurors, who they were afraid would be naturally sympathetic to a criminal defendant. And it goes on to describe conduct that has historically been associated with improper discrimination in jury selection, like inattentiveness, sleeping, failing to make eye contact, exhibited a problematic attitude, body language, or demeanor, etc. Before a party can rely on that kind of conduct, it has to first provide reasonable notice to the court and other parties so it can be verified and addressed in a timely manner.
The court has also used its bully pulpit, so to speak, to acknowledge the racial bias of the judicial system and call on everyone to do better. Shortly after George Floyd was killed, the court issued a letter, signed by all 9 justices, calling for change. I tweeted about it at the time because I was so overcome by the magnitude of what the letter represented. It spoke about the “devaluation and degradation of black lives.” It acknowledged that our institutions remain affected “by the vestiges of slavery.” It talked of accepting responsibility for the on-going injustices that occur every day, and how we must have the “the courage and the will” to address the injustices and create change, calling it “our moral imperative.”
It also called out judges, lawyers, and each individual.
As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving black parents the right to bury their infant. We cannot undo this wrong⸺but we can recognize our ability to do better in the future. We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.
It then addressed the rest of the legal community, including lawyers:
As lawyers and members of the bar, we must recognize the harms that are caused when meritorious claims go unaddressed due to systemic inequities or the lack of financial, personal, or systemic support. And we must also recognize that this is not how a justice system must operate. Too often in the legal profession, we feel bound by tradition and the way things have “always” been. We must remember that even the most venerable precedent must be struck down when it is incorrect and harmful. The systemic oppression of black Americans is not merely incorrect and harmful; it is shameful and deadly.
That last sentence, man. Gets me every time.
The court has done lots of other things, including overruling past harmful and racist precedents (see footnote 1 of the opinion), deciding a case involving Native Americans by putting the case into its full and proper historical, cultural, and legal context, which I blogged about last year, and essentially reversing a 104-year-old conviction because it was based on horrifically racist reasons.
The court appears to be taking great pains to address the issue when the opportunity presents itself. As Chief Justice Gonzalez explained in the article written by David Gutman:
Chief Justice Steven González said the court is not going out of its way to write about institutional racism, but rather is approaching cases cognizant of the role race has played and continues to play in the legal system and in America.
“We are not intentionally saying we’re going to write about race now,” González said. “We’re not colorblind. We are not pretending that race doesn’t exist. I don’t believe that ignoring it is the right approach. I don’t think it’s going to make it better. I don’t think it’s an equitable way.
“So we’re not going to turn a blind eye and ignore these things, we’re going to address them head on.”
“We’re not colorblind” is a really refreshing thing to hear from the state’s chief justice and the rest of the justices in charge of interpreting and enforcing the state constitution. State constitutions and state supreme courts matter, as the Washington Supreme Court is showing the rest of the country.
