blogging Fed Courts 8: Supreme Court review of state court decisions

The ability of the Supreme Court to review and overturn state court decisions where they are in conflict with the Constitution is probably the single power of the Court most familiar to the public, and, indeed, may be its most significant power. Thus, it is somewhat disturbing to learn that the power may in fact be a contingent one, subject to congressional control. But even if that is not the case, there are likely boundaries that the federalist structure of our system of government places on the Court in its review of state court decisions. These two subjects — the contingency or permanency of the Supreme Court’s power over state courts, and the degree to which that power is limited by principles of federalism — are the primary subjects of this post.

In one sense, the Supreme Court’s authority over state courts (and, more broadly, state officials) is based on its constitutional role as the final expositor of the Constitution’s meaning. Widely quoted as the first and last word on this idea is Chief Justice Marshall’s statement in Marbury v. Madison that

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

But Marshall’s sweeping statement should probably be read in close conjunction with its context. In Marbury the Court was deciding what effect to give to a federal statute. It is certainly the case, as Marshall argued, that courts (including the Supreme Court) are obliged only to give effect to constitutional statutes, and are indeed obliged not to give effect to unconstitutional ones. But in that sense, every court is an expositor of constitutional law. What makes the Supreme Court’s interpretation the correct one?

The answer, briefly, is appellate jurisdiction. Article III grants the Court appellate jurisdiction over “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” There seems a very obvious textual parallel here with the Supremacy Clause, which states that:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Putting two and two together to make four, we may say that if the Constitution is the supreme law of the land and binding on state judges, and if the Supreme Court has the last word on “all cases . . . arising under this Constitution,” then it seems logical to say that the Supreme Court’s constitutional decisions are probably binding on state judges as well. And, indeed, this is the way the system operates and (more-or-less) always has operated. Even if we don’t like it, we all agree to abide by the Court’s constitutional holdings, if only because the buck must stop somewhere, and the plain language of the Constitution strongly suggests that that place is the Supreme Court. As Justice Jackson suggested in Brown v. Allen,

[R]eversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.

The Court later said in Cooper v. Aaron, a school desegregation case, that Marbury

declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court . . . is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Note that the Court here (in a unanimous opinion) is explicitly tying its interpretive function to the Supremacy Clause — it is not just the Constitution that is supreme, but the Court’s interpretation of it as well.

That would seem to be a very open-and-shut case — are there any gray areas or complications?

Of course there are.

First, to start with a relatively easy question: the text of the Supremacy Clause explicitly states only that state judges are bound by the Constitution. Does that mean, under a theory of inclusio unius est exclusio alterius, that state executives and legislators are not bound by the Constitution?

No. Indeed they are bound by it. And they are also — according to the Supreme Court, at least — bound by the Court’s interpretation of it. In Cooper, the Court declined to let an Arkansas school board delay its plan for integration (required under Brown v. Board of Education) because the Arkansas governor had used military force to prevent black students from entering previously all-white schools. The Court specifically dismissed the idea that state legislatures and executives could disregard its decisions:

Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin.

So the Court clearly considers its constitutional decisions binding on all state actors, including the courts.

However, as we discussed previously, Congress has the power to make “exceptions” to the Court’s jurisdiction. Thus, in a certain very real sense, the Court’s jurisdiction to hear constitutional appeals from state court decisions depends on the good graces of Congress. And if Congress can deny the Court appellate jurisdiction, does that mean that Congress can also render the Court’s decisions nonbinding on state courts (or other state actors)?

Consider the following real bill proposed by actual congressmen:

[T]he Supreme Court shall not have jurisdiction to review . . . any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element’s or officer’s acknowledgement of God as the sovereign source of law, liberty, or government . . . .

Any decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction . . . by this Act, is not binding precedent on any State court.

This bill appears to have been drafted in response to the federal suit that forced Alabama judge Roy Moore to remove a monument to the Ten Commandments from the Alabama Supreme Court’s courthouse. According to Judge Moore himself, the purpose of the bill was to

restrict the appellate jurisdiction of the United States Supreme Court and all lower federal courts to that jurisdiction permitted them by the Constitution of the United States

The judge knows perfectly well, of course, that there is already a law that does that, and that law is called “the Constitution.” (Or maybe he doesn’t know — in which case this guy somehow managed to get himself elected Chief Justice of the Supreme Court of Alabama.) A more accurate statement of the bill’s purpose and function is to eliminate federal appeals based on a particular class of Establishment Clause claims.

Let’s bracket for a moment the fact that this is probably an unlawful use of Congress’s control over jurisdiction, because the jurisdictional element appears to be merely a tool for enabling states to ignore a portion of the First Amendment. (As we discussed previously, one of the few limitations on statutory control of jurisdiction is that Congress probably cannot use jurisdictional provisions deprive citizens of their rights.) Assume that Congress has some lawful plan to eliminate Supreme Court jurisdiction over some class of state cases. Would it follow that Congress also had the power to enact the second provision, stating that even previously decided cases were no longer binding precedent on the state courts?

There’s a not-entirely-incoherent argument that it should have that power! After all, the binding and supreme nature of the Court’s constitutional opinions is, as we’ve observed, probably rooted in its appellate jurisdiction. If Congress can limit the jurisdiction, perhaps it can limit the precedential effect, too.

However, there are several arguments that Congress can’t do this. First, there is the obvious point: giving Congress power over precedent enables the legislature to essentially nullify any Supreme Court decision it doesn’t like by making it non-binding. That seems like an obvious attack on the separation of powers. Second, allowing the states to openly ignore Supreme Court precedent would rapidly lead to us having 50 different First Amendments — at which point, it’s hard to see how we’re still one country. (Not that Alabama necessarily hates that idea.) Third, and relatedly, allowing state courts to ignore Supreme Court precedent in one class of Establishment Clause cases, but not others, could produce some strange perturbations in Establishment Clause jurisprudence, as cases have a way of not respecting neat conceptual borders. Finally, there is always a tension between the “exceptions power” and the part of Article III that says that “The judicial power of the United States, shall be vested in one Supreme Court” and “shall extend to all cases, in law and equity, arising under this Constitution.” The imperative language of Article III, and the fact that it places cases arising under the Constitution first on its list of the subjects of federal court jurisdiction, together might suggest that Congress should be cautious in assuming some kind of plenary power over jurisdiction in constitutional cases in particular.

It should be noted, of course, that that tension is deliberate, part of the “Madisonian compromise” between Federalists, who wanted a strong central court system, and Anti-Federalists, who wanted state courts to remain powerful protectors of rights on the local level, especially as against the national government. There has always been and still is a strong localist trend in American politics, and federal courts are often seen as overreaching. Despite the federal court ruling against him, for example, Roy Moore was eventually re-elected to his old job. Of course, that was also a repudiation of the considered opinion of eight Alabama judges, who unanimously voted to throw him out in the first place. So maybe there’s more going on there than just anti-federalism. But it’s certainly true that at least some portion of the populace is quite suspicious of the federal judiciary. And, the people being sovereign, is there any place for them to have some voice in either restricting the Court’s jurisdiction or limiting the scope of its reach in precedent?

Yes — but perhaps that place should be the constitutional convention floor, not the House Judiciary Committee.

Still, bills like that are fairly rare, and the ones that pass are even rarer. Generally, it’s accepted that the Supreme Court has jurisdiction to review state court cases, and Supreme Court opinions are binding on state courts. What limitations are there on the review process?

The most important principle is that state (supreme) courts are the final expositors of state law, in more-or-less exactly the same way that the federal Supreme Court is the final expositor of federal law. So the federal courts are generally not supposed to go off making up ideas for themselves about how to interpret Nevada state statutes or what the common law definition of trespass is in Wisconsin.

From this first principle flows a second one, which is that federal courts generally only rule on the federal claims in the cases they hear. There are some exceptions — for instance, in cases that end up in federal court under so-called “diversity jurisdiction” (i.e., the claims are state law claims, but the parties are from different states and so go to a federal court to get a sort of neutral arbiter). In those cases, the court must rule on state law claims — but, consistent with the first principle, they are required to apply state law as it is understood by the state courts. And, more importantly for our purposes, when the Supreme Court reviews state cases, it usually rules only on the federal questions in the case.

A third, complimentary principle is that if the state case could have been (or in fact was) resolved purely on state law grounds, the Court will not disturb the judgment — even to correct a state court’s error in interpreting federal law. This principle, in particular, represent’s the Court’s quite strong commitment to state sovereignty and state court independence, Judge Moore’s critiques notwithstanding. (That commitment can also perhaps be seen in the fact that the Court usually does not give direct orders to state courts, but rather remands for “proceedings not inconsistent with this opinion.” It’s a small thing, but it’s a sign of respect, nonetheless.) This third principle is often expressed as the “independent and adequate state ground” (IASG) principle.

And a fourth principle supporting state sovereignty is that the Court usually will not review a case that was decided on grounds of procedural default under state law. The idea is that states have a right to set their own reasonable procedural rules, and state sovereignty on this point would be undermined by the Supreme Court “rescuing” parties from their failure to abide by them.

The Court has, at times, taken the idea of state sovereignty so seriously that it refused to find that it had jurisdiction over state claims even when a jurisdictional statute arguably could be read differently. In Murdock v. City of Memphis (1875), the petitioner suggested that the Judiciary Act of 1867 had implicitly authorized the Court to hear state claims as well. Prior to 1867, a sentence in the jurisdictional statutes had made it clear that jurisdiction was limited to the federal questions which were, themselves, the basis of jurisdiction. After the 1867 Act, the sentence was deleted. The petitioner argued that this signaled Congress’s clear intent to allow the Court to hear state law claims. The Court disagreed, stressing that if Congress wanted to enlarge the Court’s jurisdiction in such a radical way, it could do so explicitly. So far, Congress has declined the invitation.

Sometimes, however, state court decisions are ambiguous. Sometimes it’s hard to tell whether a given decision rested on an IASG or on federal law. Some opinions are badly written, of course, while in others the state court may have used federal law as a lens through which to examine state law. In still others the state courts may simply have decided to make state law “co-extensive” with federal law, so that the federal and state analyses are the same.

In Michigan v. Long (1983), the Court decided that, when dealing with ambiguous state opinions, where it could not determine whether the federal question was the determinative one, it would assume jurisdiction over the case where (1) it “fairly appears” that the decision rests on federal law, or (2) federal and state law appear to be “interwoven.” The Court also gave state courts guidance on how to keep federal courts from taking jurisdiction — the “plain statement” rule:

If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.

One might wonder why the Court wouldn’t make the opposite, more deferential assumption: that ambiguous decisions were decided on state law. One reason not to do so, I think, is that that rule could encourage more ambiguous opinions, whereas the majority’s rule tends to incentivize clarity. But Justice Stevens, dissenting in Long, proposed a rule in which state decisions would only be overturned where the state decision endangered a constitutional right. (In Long, the state had actually over-applied Fourth Amendment rules.) Justice O’Connor, writing for the majority, used the dissent’s position as an opportunity to take a small jab at the liberal Warren court’s expansion of the scope of constitutional liberties:

The state courts are required to apply federal constitutional standards, and they necessarily create a considerable body of “federal law” in the process. It is not surprising that this Court has become more interested in the application and development of federal law by state courts in the light of the recent significant expansion of federally created standards that we have imposed on the States.

O’Connor’s point was that if the federal Supreme Court wanted to push federal constitutional law into more and more corners of state governance — e.g., by incorporating the 4th Amendment exclusionary rule against the states, or requiring specific procedures prior to custodial interrogation — then the Court was also under an obligation to ensure that state governance wasn’t burdened more than necessary, by intervening to let the lower courts know when they were over-applying federal law.

Sometimes, despite the general principles described above, the Court will overrule the state courts on a point of state law — usually where some constitutional provision implicates state law. So, for example, in Indiana ex rel. Anderson v. Brand (1938), the question the Court faced was whether the state of Indiana had used a statute to terminate a teacher’s contractual guarantee of tenure, in violation of Article I, Section 10, which states that

No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .

The case turned on the question of whether teacher tenure was an element of a contract between the state and the teacher — in which case it could not be impaired — or merely a statutory right, which the state could revoke at any time by amendment.

Contract law is almost always state law, and usually state common law at that. Thus, this is a case where a federal constitutional provision turned on a factual finding under state law. (Many Fifth and Fourteenth Amendment cases having to do with the deprivation of property similarly will turn on state-defined property rights.) In Brand, the state supreme court had determined that, under its precedent and Indiana law, tenure was not a contractual right, but only a “privilege” that the state granted. The Supreme Court, however, held that the state had gotten its own precedent wrong, and that in fact under Indiana law the tenure provision was contractual:

On such a question, one primarily of state law, we accord respectful consideration and great weight to the views of the state’s highest court but, in order that the constitutional mandate may not become a dead letter, we are bound to decide for ourselves whether a contract was made, what are its terms and conditions, and whether the State has, by later legislation, impaired its obligation.

The Court then undertook a review of both the statutory language relating to the employment of teachers and the Indiana court’s previous decisions.

The title of the act is couched in terms of contract. It speaks of the making and canceling of indefinite contracts. In the body the word ‘contract’ appears ten times in section 1, defining the relationship; eleven times in section 2, relating to the termination of the employment by the employer, and four times in section 4, stating the conditions of termination by the teacher . . . .

Until its decision in the present case the Supreme Court of the State had uniformly held that the teacher’s right to continued employment by virtue of the indefinite contract created pursuant to the act was contractual. [Citing several cases to support this assertion.]

As far as I am aware, no clear standard has emerged for determining when the Court may overrule state supreme court holdings on state law, but it would appear that at least some deference is due the state courts, and likely a state court holding that is reasonable or has some substantial basis in precedent will not be disturbed.

On the other hand, Bush v. Gore (2000) challenges even that assumption. In that case, there were two questions: were Florida vote-counters applying different standards from county-to-county, in a violation of equal protection principles; and if they were, what should the Court do about it?

The first question was answered fairly decisively: seven justices acknowledged that the different counting methods actually or potentially violated equal protection. But what remedy should the Court give? The majority’s decision (strangely issued as a per curiam opinion although the Court was clearly quite divided) noted that

The Supreme Court of Florida has said that the legislature intended the State’s electors to “participat[e] fully in the federal electoral process,” as provided in 3 U.S.C. § 5. That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us . . . .

Because no recount could be completed by Dec. 12, and because the Florida Supreme Court had specifically found that the Florida legislature intended that date to be the deadline for vote counting, the majority reasoned that the vote-counting must come to an end.

Justices Stevens and Breyer, however, thought that the Court should remand to provide the Florida Supreme Court an opportunity to fashion coherent vote-counting standards. Justice Stevens noted that, contrary to what the majority seemed to be implying, nothing in 3 U.S.C. § 5 prevented a state’s electors from participating fully in the electoral process, and therefore there was no reason to think the state legislature’s purpose would have been thwarted by allowing the recount to continue. December 12 was a “safe harbor” deadline, in that if electors were selected by that date Congress was required to accept them. But electors did not actually meet until Dec. 18, and it seems unlikely that a final slate of electors, certified by the executive and approved by the courts of the state of Florida before that date, would have been rejected by Congress.

Moreover, there is a strong argument that the majority’s read of the Florida Supreme Court’s take on the Florida legislature’s intent was simply wrong. The majority opinion in Gore v. Harris, the Florida case, makes no mention of a specific deadline. The Florida court acknowledges that “time is of the essence,” but only the dissenting opinion by Chief Justice Wells flags the December 12 deadline — and even then, he makes only the somewhat tepid observation that “There is no legislative suggestion that the Florida Legislature did not want to take advantage of this safe harbor provision.” (The Florida Supreme Court, however, definitely did find legislative intent that “no vote shall be ignored” and that “every citizen’s vote be counted whenever possible, whether in an election for a local commissioner or an election for President of the United States.”)

Bush v. Gore, then, presents opposing problems of deference. Does deference to the state court demand that the Supreme Court give the state court an opportunity to repair the constitutional infirmities of its previous opinion? What if there appears to be a contrary intent on the part of the state legislature? Does deference to state sovereignty require that the Court defer to the state court regarding state legislative intent? Or does the Supreme Court perhaps play a role in defending the state legislature from an overreaching state court?

The case, unfortunately, probably does not tell us much about this last proposition as a general matter. But on the specific point of elections, Chief Justice Rehnquist wrote in a concurring opinion, the Court did have a special role in protecting state legislatures:

[T]here are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them. Article II, §1, cl. 2, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance . . . .

If we are to respect the legislature’s Article II powers, therefore, we must ensure that postelection state-court actions do not frustrate the legislative desire to attain the “safe harbor” provided by §5.

There is some force to this idea, and if, indeed, the state courts were clearly attempting to override a plainly stated legislative intention, that might justify the Court’s intervention. Here, though, legislative intent was, if anything, divided: no doubt the Florida legislature would have liked to take advantage of the “safe harbor” provision by concluding the vote count by December 12 — but would it, choosing for itself, have privileged that concern over the desire to see that “no vote shall be ignored”? By answering that question and halting the count, the Court itself arguably substituted its own judgment for that of the Florida legislature.

This seems particularly apparent given that 3 U.S.C. §§ 2 & 4 provide that the state legislature should prescribe the method by which electors are to be chosen if the safe harbor deadline is missed or if, when the electors meet, the state’s delegation still has vacancies. Surely, if the state legislature disapproved of the Florida courts’ handling of the recount, it was free, after Dec. 12, to meet and decide upon a method of selecting the state’s electors. Moreover, there is some irony in the fact that the Court likely created the crisis it was trying to solve — Florida’s failure to meet the deadline — by issuing a stay of the recount on Dec. 9. Thus, although Rehnquist may have correctly stated the constitutional principle at play, the Court’s application of that principle is perhaps open to criticism.

Some last few points on Supreme Court review of state court decisions:

  • Parties may not raise a federal issue for the first time in a petition to the Supreme Court. If you have a federal claim, you must raise it in the state courts first. Cardinale v. Louisiana (1969).
  • The Court may, in rare cases, raise a federal issue itself, even if it wasn’t raised in the state courts, where the problem is so egregious as to be “plain error,” Vachon v. New Hampshire (1974). In a footnote to his dissenting opinion in Wood v. Ga. (1981), Justice White later argued that Vachon did not stand for that principle, and that in fact Vachon had raised the federal due process claim in the lower court. However, there is no evidence, in either the New Hampshire Supreme Court’s opinion or in Vachon itself, that the federal issue had been raised. As Justice Rehnquist, dissenting in Vachon, said of the petitioner’s appeal to the New Hampshire Supreme Court, “The closest that appellant came in his brief on appeal to the Supreme Court of New Hampshire to discussing the issue on which this Court’s opinion turns is in the sixth section . . . [where he] does not so much as mention either the United States Constitution or a single case decided by this Court.”
  • In very rare cases, the Court may also disagree with the state court that there was a procedural default under state law. Staub v. City of Baxley (1958). This is most likely to occur where, as in Staub, the state court appears to be using procedural default (1) out of line with its own precedent, and (2) in order to deprive a party of the ability to assert her fundamental rights.
  • Although the Court has generally required parties to be knowledgeable about even recent developments in state procedural law, Herndon v. Ga. (1935), the state may not change the procedural rules in the middle of a case in a deliberate effort to trip the parties up, NAACP v. Alabama (1958).

This is pretty much all I know with regard to ordinary Supreme Court appellate review of state court judgments. However, there is another mechanism through which the federal courts may entertain review of state court — the writ of habeas corpus. Discussion of habeas corpus will wrap up this series.

(My Fed Courts exam is on Monday, so I may not get to that final part before then. But I will get to it, sooner or later.)

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