In the beginning there was none: Supreme Court review of state criminal prosecutions.

• Author: Walsh, Kevin C.
• Position: I. Argument D. "May Proceed to a Final Decision of the Same, and Award Execution" through Conclusion, with footnotes, p. 1891-1918

4. "may proceed to a final decision of the same, and award execution "

   There is a final piece of statutory text to consider in section 25. After providing that "the writ shall have the same effect" when issued in a state court case, "as if the judgment or decree complained of had been rendered or passed in a circuit court," (112) section 25 authorizes the Supreme Court to "proceed to a final decision" and "award execution" instead of remanding for final decision, but only if "the cause shall have been once remanded before." (113)

   This statutory language seems to contemplate civil cases only. If a criminal defendant prevails on a federal law ground at the Supreme Court after losing in the state court, the appropriate remedy might be something like release from prison or a new trial, but the Supreme Court was given no authority to issue these kinds of remedies when hearing cases via writ of error in state court cases. Moreover, the evident purpose of allowing the Supreme Court to "proceed to a final decision" and "award execution" in cases that had previously been remanded was to ensure judgment without reliance on a balky state court. (114) It is unclear how that purpose could be served with respect to a state court that refused to conduct a new trial or to order release from imprisonment. (115)

   One possibility may be that Congress believed the Supreme Court could use its section 14 authority to issue writs in aid of its jurisdiction in order to grant a writ of habeas corpus after jurisdiction attached under section 25. (116) The principal difficulty with this argument is overcoming section 14's explicit statement that the Supreme Court's grant of a writ of habeas corpus was limited to prisoners who are "in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." (117)

   Section 25's evident concern about Supreme Court mandates to less than cooperative state courts was no minor matter. By instructing that the writ of error should have the same effect in cases from the state courts and circuit courts, section 25 incorporated section 24's directive that "the Supreme Court shall not issue execution in causes that are removed from them by writs of error, but shall send a special mandate to the circuit court to award execution thereupon." (118) In providing a way around this "special mandate" method for cases from the state courts, Congress addressed a concern that the Supreme Court's mandate would not necessarily be viewed as mandatory by state courts. And that concern may not have stemmed from a simple worry that state courts would act unlawfully, but rather from the belief that the Supreme Court did not have authority to mandate state courts to award execution. This was, of course, one of the central issues in Martin v. Hunter's Lessee, but that case was almost three decades away when the Judiciary Act was enacted. And the principal point of Justice Johnson's separate opinion in Martin is a disclaimer of this kind of Supreme Court authority over state courts:

   [T]he court disavows all intention to decide on the right to issue compulsory process to the state courts; thus leaving us, in my opinion, where the constitution and laws place us--supreme over persons and cases as far as our judicial powers extend, but not asserting any compulsory control over the state tribunals. As Johnson went on to explain,

   the framers of [Section 25] plainly foresaw that the state courts might refuse; and not being willing to leave ground for the implication, that compulsory process must be resorted to, because no specific provision was made, they have provided the means, by authorizing this court, in case of reversal of the state decision, to execute its own judgment. (119) The Supreme Court did not face such a situation in Cohens because it affirmed the Virginia convictions. But perhaps it is no coincidence that the most famous comment about the inability of the Supreme Court to enforce its own judgments came in a state criminal prosecution. In Worcester v. Georgia, the Supreme Court reversed the Georgia conviction of Samuel Worcester for preaching on Indian lands in Georgia without a license from the state. (120) Lore has it that Andrew Jackson said of this decision that "John Marshall has made his decision, now let him enforce it." (121) As it turns out, this lore has never been verified. (122) But whether President Jackson made this statement or not, it remains the case that the Supreme Court lacked the ability to ensure that state courts actually carried out the Court's judgments. This was a problem that Congress had recognized and sought to address, but with means designed for civil but not criminal cases.

   2. OBJECTIONS AND REPLIES

   The affirmative case for civil-only section 25 developed up to this point has been largely, but not exclusively, textual. This textual exposition has already addressed some alternative readings and considered some of the evidence for contrary interpretations of the statutory text. But there is more to the cases for and against civil-only section 25 than the prior Part's clause-by-clause consideration has thus far revealed. This Part now takes a broader view and addresses three of the most powerful objections to a civil-only interpretation of section 25.

   A first objection (or cluster of objections) relates to statutory structure, statutory purpose, and consequences. The first Congress obviously recognized that state court decisions could undercut the supremacy and uniformity of federal law. Given that this problem would not be limited to civil cases and that section 25 was Congress's way of addressing it, it would make no sense to limit section 25's reach to civil cases only. A second objection is that the civil-only interpretation of section 25 is too novel or surprising. If Congress had really limited section 25 to civil cases only, we would not be finding this out two hundred twenty-five years later. A third objection is that a civil-only interpretation of section 25 would mean that Congress acted unconstitutionally by failing to vest some federal court with either original or appellate jurisdiction in all cases arising under federal law.

   The responses to each of these objections vary from each other in their specifics. But they have a common thrust, which is to point out how the objections themselves are rooted in ways of thinking that take for granted the world that Cohens v. Virginia helped to create.

1. The Objection that Civil-only Section 25 Undercuts Federal Protection for the Uniformity and Supremacy of Federal Law

   We begin with the observation that civil-only section 25 would have left a hole the size of all state criminal prosecutions in Supreme Court appellate review. This leads to an obvious question: Could Congress (possibly or actually) have intended that? After all, section 25 prudently provided for Supreme Court appellate review of state court decisions in which the state court decided a question of federal law against someone claiming the protection of federal law. Why would Congress have provided this type of review for civil cases only? Put another way, what reason is there to think that Congress excluded from the Supreme Court's appellate jurisdiction the review of federal questions decided against someone invoking the protection of federal law in state court criminal cases while securing such review in state court civil cases?

   The first point to acknowledge is that an explicit distinction between civil cases and criminal cases in connection with the scope of review under section 25 issue never came up in any prominent way during Congress's consideration of the Judiciary Act of 1789. The only explicit recorded discussion of the potential for a state court criminal prosecution to override a federal-law-based defense that research has revealed was about the possibility of a state prosecution for violation of an unconstitutional ex post facto law. (123) Interestingly, the congressman discussing this possibility relied not on Supreme Court appellate review as a corrective, but instead on the state judges' obligation to abide by their oath to uphold the Constitution. (124) The most explicit documentary evidence against a civil-only interpretation may be a letter written by Senator Caleb Strong (one of the Act's drafters) describing the scope of Supreme Court review in a way that differentiated between civil and criminal cases for Supreme Court review of federal circuit court decisions, but not for state court decisions. (125) It is unclear, though, whether Strong meant to distinguish on these grounds rather than to describe the provisions of the Act in a general fashion. (126)

   One reason for the limited discussion of section 25 overall is that the primary debates over the Act dealt not with the availability of appellate review of state courts, but the desirability of an extensive system of lower federal courts. (127) Everyone acknowledged the need for lower federal courts in admiralty cases, but opponents of the Act argued that such courts were unnecessary for law and equity cases. (128) They contended that decision by state courts with review by the Supreme Court was preferable to decision by lower federal courts. Given this opposition strategy, it is understandable that opponents of the Act did not emphasize any particular limits on the types of state court cases in which the Supreme Court would exercise appellate review.

   Awareness of the way in which opponents of an extensive system of inferior federal courts relied on the availability of appellate review of state courts enables one to contextualize some of the broadest statements about the availability of section 25 appellate review. Representative Jackson of Georgia, for example, proffered a broad reading of the provision: "Sir, in my opinion, and I am convinced experience will prove it, there...