The late Justice William Brennan, architect of many of the landmark Warren Court precedents (and a notorious activist), advocated-indeed, devised–this strategy in a 1976 speech to the New Jersey Bar Association, which was later published in the Harvard Law Review as the widely-cited article “State Constitutions and the Protection of Individual Rights.” (90 Harv. Supreme Court cannot overturn the decision, no matter how erroneous it is. If a state’s high court doesn’t rely on an interpretation of federal law or the U.S. State courts-and in particular state supreme courts-can and do make bad decisions, often cleverly insulating themselves from further appellate review by resting their decisions on “independent state grounds.” Amid all the controversy surrounding the recent SCOTUS decisions, it is easy to forget that federal courts do not have a monopoly on judicial activism.
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