Don't mess with Texas judges: in praise of the state judiciary.

Author:Elrod, Jennifer Walker

There is one transcendant advantage belonging to the province of the State governments.... It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government.

Alexander Hamilton, The Federalist No. 17

Thank you for your gracious invitation to join you here today. I would especially like to thank the organizations sponsoring this meeting: the Federalist Society, the Abigail Adams Society, the Board of Student Advisors, the Journal of Law and Public Policy, and the Texas Club. I am privileged to address such an eclectic group of students and especially honored that some of my classmates are here today as we celebrate our twentieth law school reunion.

As you may have gathered from the title of my speech, I am going to be talking with you today about state courts and how they deserve more recognition. But from the outset, I must disclose my bias on this topic. Before becoming an appellate judge, I was appointed and twice elected to serve as a Texas state court judge, where I worked for five-and-a-half years. Because of that experience, I have come to appreciate and admire the arduous, and sometimes overlooked, work performed by state court judges. That is what prompted me to speak to you about state courts today.


    In elite law schools, federal courts get most of the attention and respect. State courts are often forgotten or (worse) viewed with skepticism--in part because many state judges must campaign and run for office. This attitude toward state judges has not always been prevalent, and it should not be so today.

    But before I delve into the contemporary criticisms of the state judiciary, I think it is helpful to review how the drafters of the Constitution and subsequent generations have viewed state courts. A common explanation for the clauses in Article III establishing federal diversity jurisdiction is that the drafters of the Constitution believed justice might be denied in such cases if they were decided by state courts. For example, former Supreme Court Justice Joseph Story, in Commentaries on the Constitution, stated:

    The constitution has presumed (whether rightly or wrongly, we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct, or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens, claiming grants under different states; between a state and its citizens, or foreigners; and between citizens and foreigners; it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals. (1) Chief Justice Marshall expressed similar views in Bank of the United States v. Deveaux, (2) where he elaborated on what has been called the "local prejudice theory" of federal diversity jurisdiction: (3)

    The judicial department was introduced into the American constitution under impressions, and with views, which are too apparent not to be perceived by all. However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states. (4) In the same vein, some of President James Madison's statements and actions suggest some distrust of state courts. Madison's original proposal for the organization of the judiciary called for a series of inferior federal courts to serve as trial courts, even though many other delegates to the Convention favored state courts as the forum of first resort for cases raising federal issues. (5) Later, during the Virginia Convention on the adoption of the federal constitution, Madison also expressed the view that " [controversies affecting the interest of the United States ought to be determined by their own judiciary, and not be left to partial, local tribunals." (6) During the same debate, he expounded on his skeptical view that state tribunals could not impartially apply the law to out-of-state litigants:

    It may happen that a strong prejudice may arise, in some states, against the citizens of others, who may have claims against them. We know what tardy, and even defective, administration of justice has happened in some states. A citizen of another state might not chance to get justice in a state court, and at all events he might think himself injured. (7) But the research of some scholars, including former Justice Felix Frankfurter (8) and Court of Appeals Judge Henry Friendly, (9) casts some doubt as to whether prejudice actually existed in state courts. Judge Friendly, for example, undertook a study of state court decisions from around the time of the Constitutional Convention, attempting to discover whether "local prejudice theory" was the historical basis of federal diversity jurisdiction. (10) Based on his examination of available documents, Judge Friendly did not find any record of bias in the decisions of state appellate courts before 1787. (11) Indeed, he explained that "a careful reading of the arguments of the time will show that the real fear was not of state courts so much as of state legislatures." (12)

    Others in the founding generation were far more trusting of state courts than federal courts to preserve their liberties, and even Madison remarked that "[a]s to [federal] cognizance of disputes between citizens of different states, I will not say it is a matter of much importance. Perhaps it might be left to the state courts." (13) Many believed that state courts were more responsive to the interests of the local citizenry than federal courts ever could be (14) and proposed that the federal courts retain only appellate jurisdiction. (15)

    Thus, the Anti-Federalists opposed what they saw as Article III's broad grant of jurisdiction to the federal judiciary, as well as the enumerated power of Congress to create inferior federal courts. (16) In his first essay in opposition to ratification, the Anti-Federalist Brutus wrote:

    The judicial power of the United States is to be vested in a supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The powers of these courts are very extensive; their jurisdiction comprehends all civil causes, except such as arise between citizens of the same state; and it extends to all cases in law and equity arising under the constitution. One inferior court must be established, I presume, in each state, at least, with the necessary executive officers appendant thereto. It is easy to see, that in the common course of things, these courts will eclipse the dignity, and take away from the respectability, of the state courts. These courts will be, in themselves, totally independent of the states, deriving their authority from the United States, and receiving from them fixed salaries; and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states. (17) So powerful was this fear of the displacement of state courts that the Constitution's proponents felt the need to address it head-on in their quest for ratification. Thus, in 1787, Hamilton wrote in Federalist No. 17:

    There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is this which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes more than any other circumstance to impressing upon the minds of the people affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. (18) One might argue that Hamilton's toast to the state judiciaries was merely a calculated response to the Anti-Federalists, but it is quite revealing of popular sentiment that such a staunch defender of national power felt the need to defend state courts as "the immediate and visible guardian of life and property." (19) Perhaps Hamilton's comments make particular sense in light of the fact that, as Professor Akhil Reed Amar explains, "By 1787, the American judiciary had begun to rise in repute. Patriots now peopled state courts everywhere." (20) In fact, six of the thirty-nine signers of the Constitution had served as prominent state or continental judges. (21)

    It is also instructive, when assessing the Founders' view of the state judiciary, to consider those of the Founding generation who declined a seat on the United States Supreme Court in favor of a position in state service. John Jay, for...

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