Cite as: 514 U. S. 1 (1995)
Ginsburg, J., dissenting
federalism does not touch or concern state courts interpreting state law.
III
Under Long, when state courts engage in the essential process of developing state constitutional law, they may insulate their decisions from this Court's review by means of a plain statement of intent to rest upon an independent state ground. The plain statement option does not, however, make pleas for reconsideration of the Long presumption much ado about nothing.6 Both on a practical and on a symbolic level, the presumption chosen matters.
The presumption is an imperfect barometer of state courts' intent. Although it is easy enough for a state court to say the requisite magic words, the court may not recognize that its opinion triggers Long's plain statement requirement. "[A]pplication of Long's presumption depends on a whole series of 'soft' requirements: the state decision must 'fairly appear' to rest 'primarily' on federal law or be 'interwoven' with federal law, and the independence of the state ground must be 'not clear' from the face of the state opinion. These are not self-applying concepts." P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 552 (3d ed. 1988) (hereinafter Hart and Wechsler); cf. Coleman v. Thompson, 501 U. S. 722, 735-740 (1991) (declining to apply Long presumption to summary dismissal order).
Can the highest court of a State satisfy Long's "plain statement" requirement in advance, through a blanket disclaimer? The New Hampshire Supreme Court, for example, has declared: "We hereby make clear that when this court cites federal or other State court opinions in construing provisions of the New Hampshire Constitution or statutes, we
6 Long has generated many pages of academic commentary, some supportive, some critical of the presumption. See, e. g., P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 553, n. 3 (3d ed. 1988) (citing commentary).
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