It seems obvious that the Supreme Court must have jurisdiction to engage in direct appellate review of state criminal prosecutions that resolve questions of federal law. Federal questions are ubiquitous in state criminal prosecutions. And given the limits on federal habeas review, direct appellate review of state decisions appears essential for the Supreme Court to exercise its structural function of maintaining the supremacy and uniformity of federal law. Think of cases like Mapp v. Ohio, (1) Miranda v. Arizona, (2) Crawford v. Washington, (3) and Maryland v. King, (4) these are just a handful of the consequential cases decided by the Supreme Court on direct appellate review of state criminal prosecutions over the years. And they are but a tiny sliver of the massively important set of cases in which the Supreme Court has engaged in direct appellate review of a state criminal prosecution. Not only is such review now routine, pervasive, and unquestioned, but it is also almost impossible for anyone to imagine that the Supreme Court ever lacked appellate jurisdiction over such cases. For almost two centuries, indeed, nobody has.
Until now. This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. (5) The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed with the Act. It provided for Supreme Court appellate review of certain state court decisions denying the federal-law-based rights of certain litigants. (6)
The received understanding of section 25, tracing back almost two hundred years and continuing into the present, is that the direct appellate review authorized by Congress in that provision encompassed both civil suits and criminal prosecutions. Professor Akhil Amar, for example, has written that "the Supreme Court was given plenary appellate review, under the famous section 25, over all state court decisions which defeated rights set up by the appellant under the Constitution, laws or treaties of the United States." (7) And Professor John Harrison has written that "Section 25 of the Judiciary Act of 1789 ... provided for federal appellate jurisdiction over state criminal prosecutions in some circumstances." (8)
This consensus understanding of section 25 dates back to the Supreme Court's 1821 landmark decision in Cohens v. Virginia. (9) Virginia prosecuted the Cohen brothers for selling lottery tickets for the congressionally created Grand National Lottery without state law authorization. (10) The Cohens unsuccessfully defended on the ground that the federal statute authorizing the tickets for this lottery preempted the state's authority to regulate their sale. (11) Chief Justice Marshall's issuance of a writ of error pursuant to section 25 provoked a massive jurisdictional battle--one of the most significant controversies to face the Court under Chief Justice Marshall. (12) But that battle was almost exclusively about the Court's jurisdiction under Article III. (13)
The Court held in Cohens, as a constitutional matter, that the Supreme Court had appellate jurisdiction to engage in direct review of state criminal prosecutions that fit within Article III's extension of the federal judicial power to cases arising under federal law. The claim that there was no statutory jurisdiction in Cohens because section 25 did not encompass direct appellate review of state criminal prosecutions by the Supreme Court of the United States was neither raised nor decided in the case. Although the Court had not previously used its statutory authority under section 25 to review a state criminal prosecution in the thirty-plus years between the Judiciary Act of 1789 and the writ of error in Cohens, the Supreme Court's practical extension of section 25 review in that case was almost entirely ignored as a matter of statutory interpretation.
With the exception of a lone constitutional lawyer from Ohio who criticized the decision when it came down, no lawyer, judge, or scholar seriously argued in the wake of Cohens v. Virginia that section 25 of the Judiciary Act did not authorize Supreme Court review of state court criminal prosecutions. The single--and singular--exception was the astute and once eminent (but now obscure) Charles Hammond, who died in 1840. (14) Writing in the immediate aftermath of Cohens, Hammond advanced a civil-only interpretation of section 25 in the tenth essay of a remarkable series of eleven pseudonymous newspaper essays written under the pen name of "Hampden." (15)
Although Hammond stood alone in staking out his civil-only interpretation of section 25 after Cohens, his arguments were not idiosyncratic when considered against the backdrop of what came before. When Congress enacted the Judiciary Act of 1789, there was very little reason for Congress to have contemplated the application of federal law in state criminal prosecutions. There was no Fourteenth Amendment, and incorporation of constitutional rights of criminal procedure was far beyond the horizon. Apart from the prohibition on ex post facto laws, Congress would not have worried about state court circumvention of the Constitution in criminal prosecutions. Just five years prior to Cohens, Justice William Johnson had argued in his separate opinion in Martin v. Hunter's Lessee that the Supreme Court had been given no appellate jurisdiction to review state court criminal prosecutions. (16) But this civil-only interpretation of section 25 simply disappeared after 1821. Justice Johnson abandoned it without explanation in Cohens, everyone ignored Hammond, and Supreme Court practice shifted quickly and irreversibly to include direct appellate review of state court criminal prosecutions under the jurisdiction granted in section 25. Fights over the Supreme Court's appellate jurisdiction to review state court decisions flared up, but they were framed as fights over whether to repeal section 25 or whether section 25 was constitutional, rather than as fights over section 25's correct legal meaning. (17)
Although Hammond's arguments were seemingly stillborn when delivered in the summer of 1821, their continuing vitality should be apparent to lawyers today. This Article resurrects Hammond's arguments and contends that he was right: the best interpretation of section 25 is that it did not encompass Supreme Court appellate review of state criminal prosecutions.
Others may reasonably disagree with this Article's ultimate interpretive conclusion about section 25's limited reach even while acknowledging the strength of the various supporting arguments. Accordingly, this Article's basic claim comes in both a strong version and a weak version. The strong version has already been stated: Section 25's authorization of Supreme Court appellate review of state court decisions was limited to civil suits and did not extend to criminal prosecutions. If this strong version is correct, the Supreme Court should have dismissed Cohens v. Virginia for lack of statutory jurisdiction. (18) The weak version is that the arguments for a civil-only interpretation of section 25 were sufficiently strong at the time of Cohens that the Court permissibly could have dismissed for lack of statutory jurisdiction. Even if not demonstrably compelled by the jurisdictional statute, this disposition would not have required any stretching of it.
This Article proceeds in three parts. Part I sets out the basic arguments from text and context that support a civil-only interpretation of section 25. Part II addresses the strongest objections. And Part III explores the broader significance of the surprising rediscovery of civil-only section 25.
There is no need to prolong this introduction with previews of Parts I and II, which one can find at the opening of those Parts. But it is useful to say more right here about Part III--why these arguments matter. After all, section 25 no longer governs. The current statute governing Supreme Court review of state decisions plainly encompasses both civil and criminal cases. (19) And Congress will never take away that authority. Indeed, there are arguments tending to establish that Congress would not even constitutionally be able to do so if it wanted to.
Interestingly enough, those arguments about the limits of congressional control over federal court jurisdiction provide the first of several reasons why a civil-only understanding of Section 25 still matters. A standard form of argument about congressional control over federal jurisdiction is based on correspondence or lack of correspondence between the Judiciary Act of 1789 and Article III. The extent of congressional control over federal jurisdiction is precisely what Professor Amar and Professor Harrison were arguing about in the articles quoted above on the reach of section 25. Professor Amar and others have argued that Article III mandates federal jurisdiction in original or appellate form in certain types of cases, (20) while Professor Harrison and others have argued the Article III is not mandatory. (21) Insofar as the first Congress is taken to be an authority on constitutional meaning--itself a contested issue--those who argue for a mandatory theory of Article III need to contend with the gap between what they say Congress was constitutionally required to authorize and what the first Congress actually did authorize. If the strong version of this Article's claim is correct, then this gap is larger and more significant than anyone until now has...