Suspecting the states: Supreme Court review of state-court state-law judgments.

Author:Fitzgerald, Laura S.


At the Supreme Court these days, it is unfashionable to second-guess states' fealty to federal law without real proof that they are ignoring it. As the Court declared in Alden v. Maine (1):

We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land." (2) Accordingly, without proof that a state has "systematic[ally]" shirked its supremacy clause duty to honor Article I legislation, the Court appears unwilling to enforce compliance in a particular case. (3) Likewise, the Court makes Congress prove a broad "pattern" of federal-law transgressions by many states before it can hold any state accountable to individuals for violating their constitutional rights. (4) Indeed, a handful of even egregious anecdotes simply cannot overcome the Court's presumption that all states can be trusted to meet their federal-law duties. (5)

So, too, the Court has made clear that lower federal courts must presume state courts can be trusted to apply federal law properly unless there is a demonstrable reason not to. The Court's abstention doctrines continue to shift federal constitutional claims from federal to state court, absent extraordinary proof that those claims will be mishandled there. (6) Once state courts lay hold of federal law, moreover, even their erroneous rulings must be honored in later federal habeas corpus challenges, so long as state courts made a "reasonable, good faith interpretatio[n]" of existing federal law. (7) And in defining the scope of federal due process guarantees, the Court has combined its faith in state courts with a faith in state law to force would-be federal-court plaintiffs to pursue state-law remedies in state court instead. (8)

When it comes to the Supreme Court's own power over state courts, however, the Court works from a different presumption even though its formal jurisdiction over them is quite limited. Since at least the 1789 Judiciary Act, the Court has been authorized to review state-court judgments only on questions of federal law. (9) Indeed, the Court has long recognized that where a state-court judgment rests on an "adequate and independent" state-law ground--where state law, standing alone, can fully explain the state court's ruling--the Supreme Court lacks jurisdiction to review even a federal question the state court decided too, no matter how wrong the state court got it. (10) And yet, the Court routinely claims the power to review a state-law decision that blocked a state court from considering a federal claim: the Court claims jurisdiction to review (and, when it chooses, to reverse) state courts' state-law judgments wherever they stand in the path of--or logically "antecede" (11)--federal interests. The Court claims this power, moreover, even where state law fully satisfies all federal constitutional and statutory standards, and so offers the Court no federal-law grounds for reversal. (12) And--contrary to the presumption of state trustworthiness the Court now imposes on Congress and the lower courts--the Court claims this power even though it identifies no reason to suspect a state court of having evaded or otherwise cheated federal law in reaching its state-law judgment. It is enough that state law simply blocked federal law's path through state court. (13)

The Court staked this antecedence-based jurisdictional claim as early as 1813 when, in Fairfax's Devisee v. Hunter's Lessee, (14) it reversed the Virginia Court of Appeals (then the Commonwealth's highest court) on the purely nonfederal confiscation question whether and when Virginia had, under Virginia statutes and common law rules, legally confiscated a parcel of real property from an English landowner. The Virginia court appeared to rule, under state law, that the confiscation had been completed no later than 1782. (15) But the Supreme Court, pointing to federal treaties in 1783 and 1784 (16) prospectively barring state interference with English subjects' property rights, reversed on that nonfederal confiscation question so that it could reach the federal issue logically next in line: whether the English claimant could invoke the treaties' protection to retain possession of the land. (17) The fact that the state-law ruling blocked that federal claim was enough, in the Court's view, to justify reversing it. (18)

The modern Court continues to assert antecedence-based jurisdiction. In Bush v. Gore, (19) three Justices, led by Chief Justice Rehnquist, argued that the Court should reverse the Florida supreme court's reading of Florida statutes regulating the vote for presidential electors. Although the Florida court had read those state statutes to authorize post-election-day manual recounts of imperfectly marked ballots, Chief Justice Rehnquist contended that the statutes did not, thus bringing forward the federal constitutional question logically next in line: whether Article II prohibits state courts from "alter[ing]" a state's election law after the votes are cast. (20) As in Fairfax's Devisee--on which Chief Justice Rehnquist relied (21)--the fact that the Florida court's state-law ruling blocked the Article II issue was enough, it seemed, to justify Supreme Court review of the state-law ground. (22)

These examples, and other cases like them, raise a hard but largely unexplored question: given the longstanding black-letter rule that the Supreme Court may only review state-court judgments on questions of federal law, (23) what gives it jurisdiction to reverse state-court state-law rulings at all? The Court's early decisions provided ambiguous and contradictory answers; since the mid-1900s the Court has stopped trying to explain. (24) And while commentators have offered jurisdictional theories to make up the Court's own deficit, each fails in its own way. (25)

Instead, the Court's practice of state grounds reversals appears to rest, at bottom, on the intuition that--given the obvious need to enforce federal law's supremacy--there simply must be some federal judicial mechanism for catching state courts that disingenuously manipulate antecedent state law to thwart federal interests and then shield their misconduct behind that superficially "adequate" state ground. (26) To many, it is unimaginable that the Supreme Court could lack the power to monitor whether state courts are cheating federal law this way. Indeed, in Bush v. Gore Justice Ginsburg declared outright that that suspicion of state-court misbehavior--sparked by "historical" events surrounding but external to a state court's judgment-best explains key cases where the Court has rejected state courts' interpretations of state law: the Court's treatment of Virginia law in Fairfax's Devisee, for example, masked its unarticulated concern about widespread states' rights attacks on the Marshall Court. (27) As Professor Alfred Hill made the point in 1965, some Supreme Court review of state-court decisions on antecedent state-law questions seems essential because otherwise federal law would have "only as much force as state courts are willing to accord it." (28)

But no matter how obvious the need appears, it remains critical to identify an affirmative jurisdictional basis for the Court's review of state-court state-law judgments. (29) And that jurisdictional justification should, I suggest, also imply and dictate the conditions under which the Court may reverse a state-court judgment once it undertakes appellate review: the jurisdictional rule must explain why the Court has power to review state-court state-law judgments, but it should also explain when the Court may deny a state court's ordinary prerogative "to utter the last word" on what state law means. (30) In other words, the Court's power to police state courts' fealty to federal law should be limited by much the same congruence and proportionality criteria that the Court has imposed on Congress, (31) so that the scope of the Court's appellate jurisdiction over state courts--like the scope of Congress's legislative jurisdiction over states--reaches only so far as necessary to police actual, identifiable wrongdoing. To borrow the Court's own standard, "[t]he appropriateness of remedial measures must be considered in light of the evil presented." (32)

Currently, the Court appears to assume it has jurisdiction to review a state-court judgment on any antecedent state ground. (33) On the second key question--when may the Court reverse state grounds?--the Court has defaulted to an inconsistent hodge-podge of guidelines suggesting how much deference it should give a state high court's reading of state law on the merits: sometimes the Court conducts a de novo analysis of state law, other times it will reverse only where the state-court judgment lacks "fair support" or is "egregiously wrong" or something else. (34) Not only are these guidelines discretionary and indeterminate (35)--imposing no real limit on the Court's use of judicial power--but they are also unmoored from any justification for why the Court has appellate jurisdiction in the first place.

This Article proposes an alternative rule: the Court may claim appellate jurisdiction to reverse state-court state-law judgments (absent an outright federal-law violation) only where it can identify and substantiate some concrete indication that the state court has deliberately manipulated state law to thwart federal law and then evade Supreme Court review. Simply put, the Court should have to rebut its own presumption that state courts can be trusted to self-enforce their supremacy clause obligations when applying state law. (36)

This "proven mistrust" rule would give jurisdictional teeth to the hunch that federal-law supremacy requires some mechanism permitting the Court to...

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