Bridging the enforcement gap in constitutional law: a critique of the Supreme Court's theory that self-restraint promotes federalism.

• Author: Pushaw, Robert J., Jr.
• Position: Dual Enforcement of Constitutional Norms

The Supreme Court has crafted numerous doctrines, such as justiciability and abstention, that enable federal judges to decline to exercise the jurisdiction Congress has granted them over all constitutional cases. The result is that constitutional law is often left to state judiciaries, which almost always have the last word because Supreme Court review has become so rare. State judges sometimes creatively expand or contract constitutional rights, thereby producing enforcement gaps.

Although the Justices have tried to close some of these holes, most remain unfilled. The Court has insisted, however, that its jurisdictional rules of self-restraint promote the original understanding of federalism, which purportedly viewed state tribunals as highly autonomous and as equal partners with federal courts in enforcing federal constitutional law.

I will argue that, on the contrary, the Founders established an independent federal judiciary to ensure the supremacy and uniformity of federal law, not to carve out exceptions to federal question jurisdiction that ultimately entrust such law to state courts. I will further contend that, if the vast modern increase in federal dockets has made it a practical necessity to create restrictive jurisdictional doctrines, federalism suggests that such limits should be imposed on controversies involving state law (most obviously diversity), not cases arising under the Federal Constitution.

1. JURISDICTIONAL DOCTRINES AND FEDERALISM

   1. The Mandatory Nature of Federal Jurisdiction

      Article III, Section 1 of the U.S. Constitution vests "[t]he judicial Power of the United States" in one Supreme Court and any inferior courts Congress establishes, with all federal judges guaranteed life tenure and non-reducible salaries. Section 2 provides that "the judicial Power shall extend" to two areas. The first is "all Cases" involving certain subjects of peculiar national importance: federal questions (those arising under the Constitution, Acts of Congress, and treaties); admiralty; and cases affecting foreign ministers, which raise delicate international law issues. (1) The second category consists of "Controversies" between enumerated parties, such as two states, a state and a citizen of another state, citizens of different states, and a state (or its citizens) and a foreign nation (or its citizens). (2) Finally, Article III gives the Supreme Court original jurisdiction over "all Cases" affecting foreign ministers or state parties, as well as appellate jurisdiction over "all the other Cases," subject to Congress's "Exceptions" and "Regulations." (3)

      Since the mid-nineteenth century, the Court has interpreted Article III as granting Congress plenary control over federal jurisdiction. In the seminal case of Ex Parte McCardle, (4) the Court recognized absolute legislative discretion to make "Exceptions" to its appellate jurisdiction. (5) Similarly, the constitutional provisions authorizing Congress to create inferior courts have long been read as implying complete control over their jurisdiction. (6) By combining these two powers, Congress can remove the Court's appellate jurisdiction and not assign that jurisdiction to lower federal courts, effectively leaving the matter to state tribunals. (7)

      Congress's plenary authority would be frustrated if federal judges could ignore its statutory commands. In the memorable words of Chief Justice Marshall: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the [C]onstitution." (8) The Court has continued to cite this language of absolute duty regarding jurisdiction. (9)

   2. Doctrines of Jurisdictional Restraint

      Notwithstanding the foregoing precedent, the Court has also held that Article III sometimes allows federal judges to decline their federal question jurisdiction, particularly when doing so would promote traditional principles of federalism. (10) Examination of these jurisdictional doctrines, however, raises serious doubts about their fidelity to federalism as originally understood. (11)

      1. Justiciability

         In the late 1930s, Franklin Roosevelt's judicial appointees, most notably Felix Frankfurter, began to develop various "justiciability" principles to determine the appropriate occasions for the exercise of federal question jurisdiction. These doctrines rested on the debatable notion that Article III's extension of "judicial Power" to "Cases" and "Controversies" had always confined the judiciary to adjudicating live disputes between adverse parties with private law interests at stake. (12) Most importantly, "standing" required constitutional claimants to demonstrate an individualized injury to an interest recognized by the common law. (13) In the early 1970s, the Burger Court added two elements to standing: that the defendant must directly have caused the plaintiffs injury and that the court can remedy it. (14) The injury, causation, and redressability requirements preclude a citizen or taxpayer from alleging generally that a government official has disobeyed the Constitution; rather, this violation must have caused a personal injury that is legally cognizable. (15)

         The New Deal Court also created the Article III doctrine of "ripeness," which bars judicial review until the factual and legal issues have been sufficiently developed. (16) Ripeness addressed the need to prevent premature judicial intervention into the proceedings of administrative agencies, which began to proliferate in the 1930s. (17)

         Finally, the Court borrowed from its standing and ripeness rationales to conclude that Article III prohibited the decision of "moot" cases (i.e., those in which the parties' dispute had ended). (18) Previously, mootness had been treated as a matter of prudential discretion. (19)

         The Court has maintained that standing, ripeness, and mootness

         define[] with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines ... are "founded in concern about the proper--and properly limited--role of the courts in a democratic society." ... "All of the doctrines that cluster about Article III ... relate ... to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government." (20) As this quote illustrates, the Court's justiciability opinions have focused primarily on separation of powers--specifically, avoiding judicial interference with the elected coordinate branches. Nonetheless, the Court's vision of federal judges as uniquely limited in our democratic system (21) has significant implications for the Constitution's other great structural principle, federalism.

         As federal courts increasingly have invoked justiciability doctrines in refusing to decide federal law cases, litigants have been forced to go to state tribunals. State judges are not bound by Article III and therefore can apply more lenient justiciability rules (22)--for instance, by allowing taxpayer standing (23) and by deciding moot cases that raise legal questions of great public importance. (24) The state court can then assert jurisdiction and resolve all questions presented, state and federal. (25) When such state judgments have been appealed to the U.S. Supreme Court, it has taken inconsistent approaches.

         Initially, the Court dismissed these cases on the logical ground that they were still non-justiciable under Article III and that therefore jurisdiction was absent. (26) Such dismissals left state court opinions on federal constitutional law intact. Some state judges exploited this insulation from review by creatively under-enforcing or over-enforcing federal constitutional norms, depending upon their ideology. (27)

         To curb such abuses, the Court ruled that dismissal of the appeal would not bar the same parties from litigating the identical claims in a federal forum (for example, in a declaratory judgment action). (28) The Court justified this exception to the ordinary preclusive effect of state court judgments on federal questions as necessary to preserve the uniformity of federal law. (29) But this exception effectively foisted federal justiciability requirements on state tribunals that sought to render a binding decision on federal questions, contrary to the Court's longstanding precedent that state judiciaries had independent authority to fashion their own jurisdictional doctrines and then decide any federal issues presented. (30)

         In 1974, the Court tried a new tack: vacating and remanding state judgments rendered in cases that would have been nonjusticiable under federal standards. (31) Left unexplained was how a court which lacked jurisdiction had the power to vacate. (32)

         In the 1989 case of ASARCO, Inc. v. Kadish, (33) the Court admitted its error and abandoned this practice:

         If we were to vacate the [state court] judgment below on the ground that respondents lacked federal standing when they brought suit initially, that disposition would render nugatory the entire proceedings in the state courts. The clear effect would be to impose federal standing requirements on the state courts whenever they adjudicate issues of federal law, if those judgments are to be conclusive on the parties. That result, however, would be contrary to established traditions and to our prior decisions recognizing that the state courts are not bound by Article III and yet have it within both their power and their proper role to render binding judgments on issues of federal law, subject only to review by this Court. In addition, we doubt it would be a proper exercise of our authority to vacate the state court's judgment in these circumstances. It would be an unacceptable paradox to exercise jurisdiction to confirm that we lack it and then to interfere with a State's sovereign power by vacating...