The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay considers the implications of these developments for state constitutional law. The Essay’s descriptive findings challenge a central theory of state constitutionalism that rests the validity of state courts interpreting their constitutions independent of analogous federal doctrine on the idea that state and federal courts are engaged in a collaborative “dialogue” over shared constitutional values. The Essay’s docket analysis and close reading of relevant cases undermine the theory’s plausibility. The Justices are both reviewing more cases that turn on state law than they have in recent decades and are redefining the central limit on their power to do so—AISG—in order to countermand, override, and even belittle the development of state law. At the same time, more and more state judges are recognizing that the Court’s text, history, and tradition approach to constitutional law is a foreign dialect and thus largely unrecognizable. This Essay urges us to consider alternatives to the dialogic frame and offers one possibility, grounded in state constitutions’ first principles, to anchor the legitimacy of state constitutionalism.
