Volume 54

Glass Ceilings? How Warren Provides Insight into State Courts’ Ability to Protest Against Limited Constructions of the Constitution

by Terrence Scudieri

 In 2016, the Massachusetts Supreme Judicial Court held that, in analyzing a suspected felon’s flight from and the reasonableness of a subsequent stop by authorities, courts may consider the suspect’s race. Citing a Boston Police Department report documenting a longstanding pattern of racial profiling, the Court explained that “whenever a black male is the subject of an investigatory stop [for a crime in progress] . . . flight is not necessarily probative of the suspect’s state of mind or consciousness of guilt.” Warren and its progeny may indicate a larger strategy for state courts to reach different conclusions than their federal counterparts when opining on federal questions over which they share concurrent jurisdiction. Simultaneously, the opinion may demonstrate how states might further expand their citizens’ positive rights and liberties under their own constitutions. 

This post will briefly review Warren, specifically evaluating the unique interplay between the federal and state judiciaries in defining the limits of criminal defendants’ constitutional rights. The post will then explore the extent to which Warren attempts to expand the contours of its subjects’ positive liberties. The post then debates whether the Supreme Judicial Court’s efforts are sufficiently rooted in and analyzed under the Commonwealth’s Constitution and jurisprudence, which would shield the court’s decisions from federal review. To the extent that such efforts may not be, the post discusses ways in which Massachusetts courts could further safeguard citizens’ constitutionally guaranteed liberties. 

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