Michigan v. Long: a twenty year retrospective.

• Author: Esler, Michael
• Position: Perspectives: Federal Jurisprudence, State Autonomy

1. INTRODUCTION

   Respect for judicial federalism requires the Supreme Court to avoid deciding questions of state law when reviewing state court decisions. (1) The Supreme Court's power lies only in interpreting federal legal questions raised by these courts. Accordingly, the Court will deny jurisdiction over issues that are settled on the basis of "independent ... and adequate" state legal grounds. (2) However, determining whether state court decisions are controlled by state or federal law, when both are discussed in state court opinions, has proved to be a persistent problem for the Court. (3)

   Citing problems with previous methods, the Court adopted a new approach in Michigan v. Long. (4) The Court held that when a state court discussed both state and federal law in its opinion, but was not clear about which was controlling, the Court would presume that the decision was based on federal law, unless the state court included a "plain statement" to the contrary. (5) The Long rule differed from past approaches in two ways. First, earlier approaches tended to presume that ambiguously worded decisions rested on state law. (6) Long reversed this presumption. Second, for the first time the Supreme Court provided a formula for state courts to use to signal that their decisions rested on state grounds.

   As we approach the twentieth anniversary of the Long decision, this article offers a retrospective of the case, by primarily analyzing subsequent Supreme Court decisions that have cited Long. (7) Thus, this study essentially analyzes Long through the opinions and decisions of the Court itself. The results reveal that the Court has remained committed to the Long rule for the past two decades. However, the success of Long in achieving its goals has not been uniform. The realization of most of its goals depends on the responses of state courts, and their responses have not always been conducive to meeting these goals.

2. OVERVIEW

   The Supreme Court has cited Long in majority, concurring, and/or dissenting opinions in fifty-eight cases. The Long rule has been the subject of forty-one. (8) Most of these cases, thirty-four out of forty-one, or eighty-three percent, were decided in the first seven years following Long. (9) Only seven Supreme Court decisions have cited the Long rule in the past thirteen years. (10) Nearly half the states (twenty-four) generated cases that were decided by the Court when invoking Long. (11) Most of the cases, thirty-two out of forty-one, or seventy-eight percent, involved criminal defendant rights. (12) Two free expression cases, (13) a free exercise, (14) and an equal protection (15) case constituted the remainder of the civil rights and liberties cases. Five cases raised a variety of issues that were not related to civil rights and liberties. (16)

   Long was cited by majority opinions thirty-four times, (17) dissenting opinions fourteen times, (18) and concurring opinions seven times. (19) Relatively extensive discussions or debates about the Long rule were joined in at least ten cases. (20)

   In his dissent in Long, Justice Stevens predicted that the Court would one day reconsider its decision. (21) So far it has not. For twenty years, the Court has invoked the Long rule for determining the legal basis of ambiguously worded state court decisions. Twelve years after Long, in Arizona v. Evans, (22) the majority reiterated its support for Long by declaring that it "properly serves its purpose and should not be disturbed." (23) Further, the Long rule has been extended beyond its original application in a civil rights and liberties case raising a substantive issue on direct review, as the Court has applied the rule to non-civil rights and liberties, (24) state procedural, (25) and habeas corpus cases. (26)

   The Long rule has enjoyed the support of solid majorities throughout its history. (27) Still, the dissenters have been persistent. Justices Stevens, Marshall, Brennan, and Blackmun objected to the rule in the original Long decision. (28) In the ensuing twenty years, these four Justices, joined by Justice Ginsberg, have criticized the rule and/or its application in a number of cases. (29) Justice Stevens has been the primary critic of both the Long rule and its application. He has criticized some aspect of Long in eighteen of the thirty-nine cases in which the issue has been raised before the full Court. (30) Justice Marshall has criticized Long in seven cases, (31) Justice Brennan in five, (32) Justice Blackmun in four, (33) Justice Ginsburg in three, (34) and Justices Kennedy and Rehnquist in one case each. (35)

   Although he has been the main critic of Long, Justice Stevens has taken a surprisingly wide range of positions in these cases. He has joined the Court in finding a federal question upon which to claim jurisdiction in more cases than he has criticized the rule and/or its application. (36) He even authored the majority opinion in Maryland v. Garrison. (37) In Harris v. Reed, he wrote a concurring opinion to explain why he favored use of the Long rule in habeas corpus cases but not in cases on direct review. (38) He also has criticized the majority in two cases in which it determined that state courts based their decisions on state law when they denied civil rights claims (39) and one case in which the majority determined that the state court based its decision on state law when it affirmed a rights claim. (40)

   In recent years, Justice Ginsburg has emerged as a strong critic of the Long rule and its application. She has criticized some aspect of the decision in three of the nine cases in which independent and adequate state grounds have been raised as an issue during her tenure on the Court. (41)

3. ASSESSING THE GOALS OF LONG

   In Michigan v. Long, (42) the Court articulated its reasons for the Long rule: protecting the integrity of federal law by maintaining consistency in how it is interpreted; recognizing the autonomy of state courts by providing them with the opportunity of developing state law unimpeded by federal interference; sparing state courts the task of clarifying their decisions for the Court; conserving resources of the Court by obviating the need to examine state law to decide the nature of state court decisions; and minimizing the use of advisory opinions. (43) The following analysis reviews these goals and assesses the success of Long in achieving them.

   1. Consistency in Federal Law

      By exerting authority over federal law, the Court can maintain consistency in how it is interpreted against the various meanings that state courts might assign to it. (44) Failure to review interpretations of federal law by state courts would result in its fragmentation. By encouraging state courts to clarify the legal basis of their decisions, but presuming that their decisions are based on federal law when they do not, the Court broadens its jurisdiction, and expands its power over the interpretation of federal law.

      Following Long, for the past two decades the Court has interpreted most state court decisions to be based on federal law when the legal authority for those decisions has been uncertain. Each of the forty-one cases under review involved a decision by a state court that raised some question about the legal grounds on which it rested and included no plain statement declaring it to be based on state grounds. In thirty-five out of forty-one, or eighty-five percent of the cases, the Court concluded that the state court decision was based on federal law, claimed jurisdiction, and declared its interpretation of the federal question. (45) With an expansive definition of what constitutes a federal legal basis, the Court has positioned itself to impose uniformity across a wide range of cases. (46)

      The Court's post-Long commitment to, and success in, exerting its authority over federal law in the name of maintaining consistency has not been doubted as much as the importance of the goal, itself, has been questioned. Justice Stevens has argued that the primary role of the Court should be to assure that federal rights claims are fairly heard. (47) According to this view, the Court ordinarily should not be concerned when state courts overprotect federal rights, even if their decisions are based on erroneous readings of federal law, (48) a position that Justice O'Connor has described as "novel." (49) Given Justice Stevens' conception of the role of the federal courts, these types of cases typically raise no important federal questions for him. (50) In this context, the goal of federal uniformity obscures and even conflicts with the Court's more important goal of protecting federal rights claims, and it expands the Court's jurisdiction into areas that are not worthy of its time and attention.

      Justice Ginsburg has expressed concern that novel issues should not be too hastily decided by the Court. Here, state courts should serve as "laboratories for testing solutions to novel legal problems" (51) to allow the "percolation" of opinions so that the Court might benefit from a variety of views before setting national standards. (52) Justice Ginsburg has averred that the Long rule impedes this process in cases in which state courts base their decisions on state law, but fail to provide plain statements to that effect. Under Long, the Court could claim jurisdiction over these types of cases and impose a uniform federal rule, perhaps prematurely. (53) Abandoning the Long presumption in favor of an approach that is more deferential to the decisions of state courts would encourage diversity and generate more ideas about how to resolve emerging issues. (54)

      These criticisms of the Court's commitment to maintaining consistency in federal law suggest an alternative explanation for the Court's decisions: that they are motivated by policy preferences in support of state governments over the rights claims of individuals. Justice Stevens has referred to the "disturbing questions concerning the Court's...