Choosing a "Primacy" Approach: Chief Justice Christine M. Durham Advocating States Rights in Our Federalist System

I. INTRODUCTION Women today are being appointed and elected to state high courts more frequently than ever before. (1) This is viewed, quite rightly, as an achievement for women, but it is not complete--there is still much more that must be done before true gender equality within the judiciary will have been achieved. In Chief Judge Judith Kaye's words, is the time ... [when women in the legal profession] will make a real impact that might serve as a model for all society as it struggles toward gender equality. (2) Judge Patricia Wald, echoing Judge Kaye's message, said: The formidable achievements of women lawyers over the past generation have brought us a long way on the road to career equality and recognition. We are at an interesting way station in that trip, perhaps worth a pause to think about what women want to do in and for our chosen profession. There are enough of us now--and many more coming--to make a difference. The question is, quite simply, what kind of difference. (3) Although women now account for almost a third of the nation's lawyers. (4) there remains an open and obvious gender gap in the legal profession--with men occupying most top-level positions in both the judiciary and large law firms. (5) The cracks that only recently began to appear in the `glass ceiling' in the halls of justice (6) spread even wider when, in 1982, Christine M. Durham became the first woman ever to sit on the Utah Supreme Court. (7) More recently, the other justices of the Utah Supreme Court elected Durham to Chief Justice, a position that will undoubtedly allow her influence over the court to expand, to the point where--at least in Utah, perhaps--the glass ceiling finally shatters. (8) Christine Durham, upon being sworn in on April 3, 2002, became the first woman to ever hold the position of Chief Justice of the Utah Supreme Court. (9) As obviously significant this is culturally and historically, no less important is the impact she has had, and will assuredly continue to have, on the court's jurisprudence institutionally--specifically, by speaking out in support of a primary role for state-constitutionally-based adjudication in our federalist system. This Comment focuses on this aspect of Chief Justice Christine Durham's role on the Utah Supreme Court--as an advocate of the Utah courts' looking to the Utah State Constitution as a primary source of protection for fundamental rights. Part I of this Comment introduces highlights of Chief Justice Durham's background and provides a brief overview of the structure and history of the Utah Supreme Court. Part II then discusses the most-recognized approaches to state-constitutionally-based legal analysis generally, and postulates that Chief Justice Durham favors an approach to constitutional analysis specifically that looks to the state constitution first. Part III supports this thesis--by examining a sample of relevant Utah Supreme Court opinions involving state constitutional issues that arose in the context of both death penalty and search-and-seizure cases, as well as an article written by Chief Justice Durham on the subject of state constitutional analysis--and concludes that Chief Justice Durham is firmly committed to state courts' using state constitutions as primary sources of legal protections for fundamental rights and liberties. Background of Chief Justice Christine M. Durham Chief Justice Durham is an accomplished scholar, educator, and pacesetter. Remarkably, she also manages to balance her professional responsibilities with those concomitant to being a mother of five children. (10) Christine Durham graduated from Wellesley College in 1967 with High Honors, and she earned her J.D. from the Duke University School of Law in 1971, where she currently sits as a member of the Board of Trustees. (11) After receiving her law degree, she practiced law in Durham, North Carolina, and was an instructor of Legal Medicine at the nearby Duke University Medical School. …