Dan Meltzer's "luminous scholarship," to quote from the dedication to the recently published seventh edition of the Hart and Wechsler book on the federal judicial system, has "enriched our field." (1) And so I am privileged to participate in this symposium honoring that work, which covers almost four decades and which ended much too soon.
Dan's goal in his scholarship was not to deconstruct but to elevate. Doctrine and function, as he saw them, were not mutually exclusive or completely independent concepts. Each had an important role: the former to provide legitimacy, coherence, stability, and predictability in the law; the latter to ensure that the law serves the practical needs of a complex and powerful federal judicial system. But neither should be considered apart from the other. A major aim of his scholarship, then, was to bring those two concepts into closer alignment.
There are many illustrations. Perhaps my favorite is an article he coauthored with his friend and colleague, Richard Fallon, that focused on the availability of remedies for constitutional violations. (2) In that classic article, the effort to bring doctrine and function into closer alignment is beautifully captured in the following passage:
Within our constitutional tradition ... the Marbury dictum [that there must be a remedy for every right] reflects just one of two principles supporting remedies for constitutional violations. Another principle, whose focus is more structural, demands a system of constitutional remedies adequate to keep government generally within the bounds of law. Both principles sometimes permit accommodation of competing interests, but in different ways. The Marbury principle that calls for individually effective remediation can sometimes be outweighed; the principle requiring an overall system of remedies that is effective in maintaining a regime of lawful government is more unyielding in its own terms, but can tolerate the denial of particular remedies, and sometimes of individual redress. (3) My purpose in this brief Essay is to expand on this theme as it played out in Dan's role as collaborator, friendly critic, and keen analyst, and to do so by exploring a problem that in some ways lies at the heart of our elaborate system of judicial federalism, even though (perhaps because it does not arise that often) it has received somewhat less attention than it deserves. That problem addresses the nature of federal judicial authority--and especially the appellate jurisdiction of the Supreme Court--when a federal issue is embedded in, or when its determination may affect the resolution of, a question of state law. The story as told here begins with, and radiates out from, a seventy-year-old decision of the Supreme Court, Standard Oil Co. of California v. Johnson. (4) I want to focus on its consideration over the years by Dan and me, and on its effect on our thinking about related issues. This story, I think, tells something not only about the fascination of the field we both enjoyed so much, but also about both the delights of a long collaboration on a respected book and the joys of colleagueship and dialogue. While the narrative deals only with what ended up in print, beneath the surface lie many wonderful conversations about this and related problems.
Telling the story requires some background and warrants a concluding effort to bring my own thinking up to date.
Since the Standard Oil decision plays a central role, it deserves a summary at the outset.
California law imposed a tax, measured by gallonage sold, on the distribution of motor fuel. The law provided an exemption from tax for "any motor vehicle fuel sold to the government of the United States or any department thereof for official use of said government." (5) Standard Oil sold gasoline to U.S. post exchanges in the state, and, after paying the tax, brought a state court action to recover the payment on the grounds that (1) such sales came within the quoted exemption as a matter of state law, and (2) if not, the state law would impose a burden on instrumentalities of the United States in violation of the Federal Constitution. (6) Both contentions were rejected by the state courts, and the Supreme Court granted an appeal under the statute then in effect authorizing appeal as of right when the (federal) constitutionality of a state statute was challenged and upheld by the highest court of the state. (7)
In an opinion for a unanimous Court, Justice Black did not reach the second ground on which the challenge was based. In interpreting the state's law, Justice Black said, the state court "did not rely upon the law of California" but rather "upon its determination concerning the relationship between post exchanges and the Government of the United States," and that relationship "is controlled by federal law." (8) The opinion then went on to consider the correctness of this "federal question" on which the state court's interpretation of state law was said to rest, and concluded that it was incorrect: "[P]ost exchanges as now operated are arms of the Government deemed by it essential for the performance of governmental functions." (9)
In his last paragraph, Justice Black wrote that the Court did not need to reach the constitutional issue because it had no way of knowing how the state court would have construed the state statute "if it had decided the issue of legal status of post exchanges in accordance with this opinion." (10) Accordingly, the judgment was reversed and remanded "for further proceedings not inconsistent with this opinion." (11) Shepardizing this decision reveals no subsequent judicial proceedings in the litigation. (12)
The Supreme Court's ruling on the "state law" issue in Standard Oil has continued to generate controversy. The decision might be viewed as at odds with the rule of Murdock v. City of Memphis (13)--a rule I believe to be one of the two essential pillars of American judicial federalism, (14) and indeed one required by our constitutional structure. (15) Under that rule, the Supreme Court has no authority to review a decision of a state court on a question of state law--at least if that decision does not erect an improper barrier to the Court's consideration of a federal question. (16) Surely, the California Supreme Court's interpretation of its own law did not stand in the way of U.S. Supreme Court consideration of the petitioner's constitutional claim; instead, it precipitated that claim. Should it make any difference that in deciding that state law question, the state supreme court chose to invoke federal decisions in helping it to define the terms of the state statute?
Not surprisingly, the Hart and Wechsler book gave prominence to the Standard Oil decision in the 1953 first edition, and continued to do so in four succeeding editions. Although Dan joined the book for preparation of the third edition, he did not acquire custody of the chapter on Supreme Court review of state court decisions (Chapter V) until the fourth, published in 1996. To understand his contribution to the problem posed by Standard Oil (and related problems), as well as the relationship between his thoughts on these problems and mine, we need to consider the earlier editions, and two related law review articles that appeared during that time.
In the first edition, (17) the only one coauthored by Hart and Wechsler themselves (and only by them), Standard Oil appeared in Chapter V, Section 2 ("The Relation Between State and Federal Law") as a principal case, (18) followed by a Note of some three and one-half pages entitled "Note on State Incorporation by Reference of Federal Law." (19) In this Note, the authors (20) referred to or described a number of other cases, asked how they related to each other and to the Standard Oil decision, and asked whether the Supreme Court would have jurisdiction to review a state court decision applying the state rules of civil procedure if the state had chosen to conform those rules to the federal rules. They also asked whether there was authority to review a state court decision applying the state's income tax law if the determination of the tax was keyed to the determination of the taxpayer's federal income tax, and, finally, they noted a statement by Justice Holmes that the Court had authority to review a state court ruling that "purport[ed] to deal only with local law," if it had "for its premise or necessary concomitant a cognizable mistake [of federal law]." (21)
Two cases of continuing interest that the reader was asked to contrast with each other and with Standard Oil were Minnesota v. National Tea Co. (22) and State Tax Commission v. Van Cott. (23) In National Tea, the Court was confronted with a state court decision that had upheld a taxpayer's challenge to imposition of a state tax. Concluding that there was "considerable uncertainty" as to whether and to what extent the state court had rested its decision on the state or the Federal Constitution, the Court vacated the judgment and remanded for clarification. (24) In Van Coti, the state court, in determining that certain wages paid by the federal government were immune from taxation under state law, appeared to rely on a U.S. Supreme Court decision declaring certain wages to be constitutionally immune from state taxation. (25) The Supreme Court granted certiorari, noted that the decision relied on by the state court had just been overruled, and vacated and remanded so that the case could be reconsidered "apart from any question of [Federal] Constitutional immunity." (26)
Of particular interest here, the authors (perhaps motivated by a desire to leave the task to students) made no effort in this Note to unpack the range of cases they discussed, or to suggest--even through the use of their famous rhetorical questions (27)--a possible synthesis.
During the twenty-year hiatus between publication of the first and second editions of Hart and...