Powers, rights, and section 25.

• Author: Woolhandler, Ann
• Position: Of the Judiciary Act of 1789

The 1789 Judiciary Act's Section 251 has proved an embarrassment for those claiming that all federal question jurisdiction must vest, either originally or by appellate review, in the federal courts. (2) Because Congress did not provide for general federal question jurisdiction in the lower federal courts until 1875, (3) Supreme Court review of state court judgments under Section 25 would be needed to ensure that all cases arising under federal law would vest in some Article III court. On its face, however, Section 25, as well as its 1867 successor, (4) excluded some federal issues from Supreme Court review of state court judgments, particularly when the state court overvindicated a federal claim. (5) Indeed, review at the instance of either side of federal issues was not clearly available until Congress amended the review provisions in 1914. (6) This amendment responded to the apparent unreviewability of the New York Court of Appeals' decision in Ives v. South Buffalo Railway Co., (7) holding that the state's workers' compensation law was unconstitutional. (8)

A leading modern proponent of mandatory vesting, Akhil Amar, sought to blunt the impact of Section 25 on his mandatory vesting claim by two arguments--one specific to Section 25 and the other more general as to the role of federal question jurisdiction. As to Section 25 specifically, Amar reasoned that the direct review provisions in fact did encompass all federal questions, because Section 25's text could be read to include either side's claim under federal law. (9) He argued that "[i]n virtually every case in which one party argues for a federal 'right,' the other side can argue that it has a federal 'immunity'--which is simply another way of saying that one's opponent has no federal right." (10)

At a higher level of generality, Amar harkened to a more general theme in much federal courts scholarship--that the primary role of the federal courts is the protection of individuals against government. (11) This theme was somewhat in tension with Amar's theory that all federal question jurisdiction necessarily vested in the federal courts and that Section 25 encompassed review no matter which way the federal issue had been decided. (12) But for Amar, even if Section 25 were more restrictive than he claimed, that section nevertheless had vested the most important part of mandatory federal question jurisdiction by providing review for all undervindications of federal rights. (13) The point of Article III's mandatory vesting of federal question jurisdiction, after all, was not uniformity but federal rights enforcement:

The inspiration behind "arising under" jurisdiction was rooted not in uniformity but in the importance of protecting individual rights by providing an impartial and independent national tribunal. Where the state court decision violated no individual federal rights, but in fact gave the litigant raising a federal right more than he was entitled to as an absolute minimum, no compelling need for federal court supervision would arise. (14) Other scholars who argue for some form of mandatory vesting, particularly those arguing against broad congressional power to strip federal courts of jurisdiction, similarly emphasize federal courts' central role in protecting constitutional rights. (15) (For some mandatory vesting proponents, however, uniformity is also an important concern. (16))

Daniel Meltzer disagreed with Amar's mandatory vesting thesis, and argued that history did not support Amar's claim that Section 25 granted the Supreme Court power to take review at the instance of either side of a federal rights claim. (17) He noted that one could not always easily turn a claim of overenforcement of a federal right into an immunity or privilege. (18) He acknowledged that reasoning like Amar's surfaced in a 1908 case and a few subsequent decisions involving employees' actions against railroads. (19) But these late decisions did not overcome a number of decisions from 1806 to 1902, in which the Court read Section 25 and its 1867 successor as only giving review for federal rights denials. (20) Edward Hartnett has since reinforced Meltzer's arguments that historically review was not equally available to both sides. (21) Hartnett's argument was not primarily addressed to the mandatory vesting issue, but rather in service of his argument that the Court should rarely grant review in cases such as Michigan v. Long, (22) in which state prosecutors claim that the state courts have overvindicated criminal defendants' constitutional rights. (23)

Critics have also taken on the argument advanced by Amar and others that that the primary role of federal question jurisdiction--and federal courts more generally--is the protection of individual rights (even while Amar argued for review of all claims). Paul Bator had previously criticized the view that individual constitutional rights protection was the only constitutional value, claiming that structural values such as federalism should be similarly appreciated. (24) And in the context of Supreme Court review of state court judgments, Thomas Baker defended cases such as Long, where the Court took review to address state court overenforcement of federal individual rights protections. (25) Such critiques were compatible with trends beyond federal courts scholarship that questioned the purposive interpretation of statutes and the Constitution--interpretations that advanced what the interpreter saw as their overriding aims and principles. (96) In the fields of legislation, law and economics, (27) and administrative law, (28) a wave of scholarship emphasized text, as well as the compromises and competing values reflected in statutes and the Constitution. Such views suggested that statutes should not be read as unidirectionally aimed toward forwarding one particular goal without regard to the limitations in the statutes, and that the over- and underenforcement of law could be of similar importance. (29)

This Article examines the history of direct review of state court judgments with a view to casting further light on the issue of the scope of review under Section 25 and its 1867 successor. It employs Wesley Hohfeld's categories of legal relations (30) to show the gradual development from more one-sided review of underenforcement claims to more symmetrical review over time that included overenforcement. (31) This trend was partly attributable to the malleability of the review statutes' language. (32) It was also due to the Court's seeing general law protections of liberty and property as increasingly federal, (33) and to the Court's seeing both sides of federal issues as intended beneficiaries of federal law. Overall, the Article presents a middle ground between Amar's expansive view on the one hand and Meltzer's restrictive view on the other. On the one hand, this history lends support to Amar's view that the statute governing Supreme Court review of state court judgments could often support symmetrical review. (34) On the other hand, in accordance with Meltzer's views, the Court saw itself as bound by congressional limitations, and its decisions expanding review may have had more to do with expansions of what the court saw as federal legal positions and less to do with suggestions that all federal question jurisdiction had to vest in the federal courts. (35)

The history also casts light on the view that Supreme Court review of state courts judgments in particular, and federal court jurisdiction in general, exist for the overriding purpose of individual rights vindication. Such views continue to infuse critiques of the Court's taking jurisdiction to review state court overvindications of federal rights in cases such as Long. (36) While protection of individuals was and remains an important aim of direct review, the Court's early applications of Section 25 serve as a reminder that protection of federal power could be at least as important as the protection of individual immunities opposed to such power. (37) The increasing symmetry of review reflects the Court's understanding that enforcing not only federal power but the limits of such power, and not only federal rights but the limits of such rights, are important to the federal courts' role.

1. SECTION 25 AND ITS SUCCESSOR

   Section 25 of the 1789 Judiciary Act provided:

   That a final judgment or decree in any suit, in the highest court of law or equity (38) of a State in which a decision in the suit could be had,

   [1] where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity;

   [2] or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity,

   [3] or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, (39) may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error.... (40)

   The 1867 revisions, which the Court interpreted as making no significant changes with respect to the question of symmetrical review at issue herein, (41) are provided in the footnotes. (42)

2. HOHFELD'S CATEGORIES

   As noted above, Amar argued that a state court's overenforcement of federal rights could be turned into a reviewable claim of federal immunity, while Meltzer argued that this reversal was not always possible. (43) Wesley Hohfeld's categories may help to analyze the interpretation of Section 25 and its 1867 successor. Although Hohfeld's famous articles appeared in 1913...