This term, the U.S. Supreme Court will hear oral arguments on October 29, 2012 (my wedding anniversary, I must add, so I won’t be attending) regarding a search and seizure ruling by the Florida Supreme Court, in which the state supreme court held that an alert by a drug-sniffing dog was, by itself, insufficient probable cause to search a car. An astute student of the Supreme Court or civil liberties will predict that the Court will have a problem with that conclusion.
Some of our readers may not be aware, however, that a state supreme court can, indeed, recognize more constitutional rights than the U.S. Supreme Court does. More rights, and stronger rights in the same area. For example, the U.S. Supreme Court has never held that a motorist is entitled to a sort of “Miranda” warning by a police officer prior to requesting consent to search the motorist’s car (“Sir, do you mind if I look in the car—but before I do, I must inform you that you have the right to refuse.’ – something like that). A few state supreme courts, however, have experimented with recognizing a right like that. For a brief, and perhaps shining, moment in the 1990s, our sister state of Ohio recognized this “car search Miranda warning.”
The problem arises when the state supreme court announces the basis for its decision to recognize “more” rights. If that court states that its decision is based on the federal constitution—and not state law or the state constitution—then the U.S. Supreme Court is free to accept that case for review and reverse it. In effect, some would say, taking the right away. That same U.S. Supreme Court, however, has zero authority to “take away” a right granted under a state constitution. It has no jurisdiction over state law per se, only “federal questions.”
So, you ask, why would a state supreme court not just overtly say that its decision was based on state law? Then, the U.S. Supreme Court would have no jurisdiction over the issue. There, my friends, is the realm of judicial politics, in my humble opinion. There are a lot of punts in that game. Indeed, these high oracles of law in some states manage to write opinions the basis for which is virtually impossible to decipher. Is it state law? Federal law? The Vienna Convention? Who knows?
