Supreme Court Review of State Court Decisions

JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS

Cases Arising Under the Constitution, Laws, and Treaties of the United States

Cases arising under the Constitution are cases that require an interpretation of the Constitution for their correct decision.685 They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a state legislature, and asks for judicial relief. The clause furnishes the principal textual basis for the implied power of judicial review of the constitutionality of legislation and other official acts.

Development of Federal Question Jurisdiction.—Almost from the beginning, the Convention demonstrated an intent to create “federal question” jurisdiction in the federal courts with regard to federal laws;686 such cases involving the Constitution and treaties were added fairly late in the Convention as floor amendments.687 But when Congress enacted the Judiciary Act of 1789, it did not confer general federal question jurisdiction on the inferior federal courts, but left litigants to remedies in state courts with appeals to the United States Supreme Court if judgment went against federal constitutional claims.688 Although there were a few jurisdictional provisions enacted in the early years,689 it was not until the period following the Civil War that Congress, in order to protect newly created federal civil rights and in the flush of nationalist sentiment, first created federal jurisdiction in civil rights cases,690 and then in 1875 conferred general federal question jurisdiction on the lower federal courts.691 Since that time, the trend generally has been toward conferral of ever-increasing grants of jurisdiction to enforce the guarantees recognized and enacted by Congress.692

685 Cohens v. Virginia, 19 U.S. (6 Wheat,) 264, 378 (1821).

686 M. Farrand, supra at 22, 211-212, 220, 244; 2 id. at 146-47, 186-87.

687 Id. at 423-24, 430, 431.

688 1 Stat. 73. The district courts were given cognizance of “suits for penalties and forfeitures incurred, under the laws of the United States” and “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States ... .” Id. at 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801,§ 11, 2 Stat. 92, but this law was repealed by the Act of March 8, 1802, 2 Stat. 132. On § 25 of the 1789 Act, providing for appeals to the Supreme Court from state court constitutional decisions, see supra.

689 Act of April 10, 1790, § 5, 1 Stat. 111, as amended, Act of February 21, 1793, § 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also enacted.

690 Act of April 9, 1866, § 3, 14 Stat, 27; Act of May 31, 1870, § 8, 16 Stat. 142; Act of February 28, 1871,§ 15, 16 Stat. 438; Act of April 20, 1871, §§ 2, 6, 17 Stat. 14, 15.

691 Act of March 3, 1875, § 1, 18 Stat. 470, now 28 U.S.C. § 1331(a). The classic treatment of the subject and its history is F. Frankfurter & J. Landis, supra.

692 For a brief summary, see Hart & Wechsler, supra at 960-66.

When a Case Arises Under.—The 1875 statute and its present form both speak of civil suits “arising under the Constitution, laws, or treaties of the United States,”693 the language of the Constitution. Thus, many of the early cases relied heavily upon Chief Justice Marshall’s construction of the constitutional language to interpret the statutory language.694 The result was probably to accept more jurisdiction than Congress had intended to convey.695 Later cases take a somewhat more restrictive course.

Determination whether there is federal question jurisdiction is made on the basis of the plaintiff’s pleadings and not upon the response or the facts as they may develop.696 Plaintiffs seeking access to federal courts on this ground must set out a federal claim which is “well-pleaded” and the claim must be real and substantial and may not be without color of merit.697 Plaintiffs may not anticipate that defendants will raise a federal question in answer to the action.698 But what exactly must be pleaded to establish a federal question is a matter of considerable uncertainty in many cases. It is no longer the rule that, when federal law is an ingredient of the claim, there is a federal question.699

Many suits will present federal questions because a federal law creates the action.700 Perhaps Justice Cardozo presented the most understandable line of definition, while cautioning that “[t]o define broadly and in the abstract ‘a case arising under the Constitution or laws of the United States’ has hazards [approaching futility].”701 How and when a case arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.... The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.... A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto....702

693 28 U.S.C. § 1331(a). The original Act was worded slightly differently.

694 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379 (1821).

695 C. WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS § 17 (4th ed. 1983).

696 See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986); Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983).

697 Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 576 (1904); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Binderup v. Pathe Exchange, 263 U.S. 291, 305-308 (1923). If the complaint states a case arising under the Constitution or federal law, federal jurisdiction exists even though on the merits the party may have no federal right. In such a case, the proper course for the court is to dismiss for failure to state a claim on which relief can be granted rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). Of course, dismissal for lack of jurisdiction is proper if the federal claim is frivolous or obviously insubstantial. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933).

698 Louisville & N.R.R. v. Mottley, 211 U.S. 149 (1908). See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974).

699 Such was the rule derived from Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986).

700 American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). Compare Albright v. Teas, 106 U.S. 613 (1883), with People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), with Feibelman v. Packard, 109 U.S. 421 (1883), and The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913).

701 Gully v. First National Bank in Meridian, 299 U.S. 109, 117 (1936).

702 299 U.S. at 112-13. Compare Wheeldin v. Wheeler, 373 U.S. 647 (1963), with Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See also J. I. Case Co. v. Borak, 377 U.S. 426 (1964): Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).

It was long evident, though the courts were not very specific about it, that the federal question jurisdictional statute is and always was narrower than the constitutional “arising under” jurisdictional standard.703 Chief Justice Marshall in Osborn was interpreting the Article III language to its utmost extent, but the courts sometimes construed the statute equivalently, with doubtful results.704

Removal From State Court to Federal Court.—A limited right to “remove” certain cases from state courts to federal courts was granted to defendants in the Judiciary Act of 1789,705 and from then to 1872 Congress enacted several specific removal statutes, most of them prompted by instances of state resistance to the enforcement of federal laws through harassment of federal officers.706 The 1875 Act conferring general federal question jurisdiction on the federal courts provided for removal of such cases by either party, subject only to the jurisdictional amount limitation.707 The present statute provides for the removal by a defendant of any civil action which could have been brought originally in a federal district court, with no diversity of citizenship required in “federal question” cases.708 A special civil rights removal statute permits removal of any civil or criminal action by a defendant who is denied or cannot enforce in the state court a right under any law providing for equal civil rights of persons or who is being proceeded against for any act under color of authority derived from any law providing for equal rights.709

703 For an express acknowledgment, see Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900); Romero v. International Terminal Operating Co., 358 U.S. 354, 379 n. 51 (1959).

704 E.g., Pacific Railroad Removal Cases, 115 U.S. 1 (1885), and see id. at 24 (Chief Justice Waite dissenting).

705 § 12, 1 Stat. 79.

706 The first was the Act of February 4, 1815, § 8, 3 Stat. 198. The series of statutes is briefly reviewed in Willingham v. Morgan, 395 U.S. 402, 405-406 (1969), and in H. Hart & H. Wechsler, supra at 1192-94. See 28 U.S.C. §§ 1442, 1442a.

707 Act of March 3, 1875, § 2, 18 Stat. 471. The present pattern of removal jurisdiction was established by the Act of March 3, 1887, 24 Stat. 552, as amended, 25 Stat. 433.

708 28 U.S.C. § 1441.

709 28 U.S.C. § 1443.

The constitutionality of congressional provisions for removal was challenged and readily sustained. Justice Story analogized removal to a form of exercise of appellate jurisdiction,710 and a later Court saw it as an indirect mode of exercising original jurisdiction and upheld its constitutionality.711 In Tennessee v. Davis,712 which involved a state attempt to prosecute a federal internal revenue agent who had killed a man while seeking to seize an illicit distilling apparatus, the Court invoked the right of the National Government to defend itself against state harassment and restraint. The power to provide for removal was discerned in the necessary and proper clause authorization to Congress to pass laws to carry into execution the powers vested in any other department or officer, here the judiciary.713 The judicial power of the United States, said the Court, embraces alike civil and criminal cases arising under the Constitution and laws and the power asserted in civil cases may be asserted in criminal cases. A case arising under the Constitution and laws “is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defence of the party, in whole or in part, by whom they are asserted... .”

710 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347-351 (1816). Story was not here concerned with the constitutionality of removal but with the constitutionality of Supreme Court review of state judgments.

711 Chicago & N.W. Ry. v. Whitton’s Administrator, 80 U.S. (13 Wall.) 270 (1872). Removal here was based on diversity of citizenship. See also The Moses Taylor, 71 U.S. (4 Wall.) 411, 429-430 (1867); The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1868).

712 100 U.S. 257 (1880).

713 100 U.S. at 263-64.

“The constitutional right of Congress to authorize the removal before trial of civil cases arising under the laws of the United States has long since passed beyond doubt. It was exercised almost contemporaneously with the adoption of the Constitution, and the power has been in constant use ever since. The Judiciary Act of September 24, 1789, was passed by the first Congress, many members of which had assisted in framing the Constitution; and though some doubts were soon after suggested whether cases could be removed from State courts before trial, those doubts soon disappeared.”714 The Court has broadly construed the modern version of the removal statute at issue in this case so that it covers all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.715 Other removal statutes, notably the civil rights removal statute, have not been so broadly interpreted.716

Corporations Chartered by Congress.—In Osborn v. Bank of the United States,717 Chief Justice Marshall seized upon the authorization for the Bank to sue and be sued as a grant by Congress to the federal courts of jurisdiction in all cases to which the bank was a party.718 Consequently, upon enactment of the 1875 law, the door was open to other federally chartered corporations to seek relief in federal courts. This opportunity was made actual when the Court in the Pacific Railroad Removal Cases719 held that tort actions against railroads with federal charters could be removed to federal courts solely on the basis of federal incorporation. In a series of acts, Congress deprived national banks of the right to sue in federal court solely on the basis of federal incorporation in 1882,720 deprived railroads holding federal charters of this right in 1915,721 and finally in 1925 removed from federal jurisdiction all suits brought by federally chartered corporations on the sole basis of such incorporation, except where the United States holds at least half of the stock.722

714 100 U.S. at 264-65.

715 Willingham v. Morgan, 395 U.S. 402 (1969). See also Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must be predicated on the allegation of a colorable federal defense. Mesa v. California, 489 U.S. 121 (1989). However, a federal agency is not permitted to remove under the statute’s plain meaning. International Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72 (1991).

716 Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 (1975).

717 22 U.S. (9 Wheat.) 738 (1824).

718 The First Bank could not sue because it was not so authorized. Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61 (1809). The language, which Marshall interpreted as conveying jurisdiction, was long construed simply to give a party the right to sue and be sued without itself creating jurisdiction,. Bankers Trust Co. v. Texas & P. Ry., 241 U.S. 295 (1916), but in American National Red Cross v. S. G., 505 U.S. 247 (1992), a 5-to-4 decision, the Court held that when a federal statutory charter expressly mentions the federal courts in its “sue and be sued” provision the charter creates original federal-question jurisdiction as well, although a general authorization to sue and be sued in courts of general jurisdiction, including federal courts, without expressly mentioning them, does not confer jurisdiction.

719 115 U.S. 1 (1885).

720 § 4, 22 Stat. 162.

721 § 5, 38 Stat. 803.

722 See 28 U.S.C. § 1349.

Federal Questions Resulting from Special Jurisdictional Grants.—In the Labor-Management Relations Act of 1947, Congress authorized federal courts to entertain suits for violation of collective bargaining agreements without respect to the amount in controversy or the citizenship of the parties.723 Although it is likely that Congress meant no more than that labor unions could be suable in law or equity, in distinction from the usual rule, the Court construed the grant of jurisdiction to be more than procedural and to empower federal courts to apply substantive federal law, divined and fashioned from the policy of national labor laws, in such suits.724 State courts are not disabled from hearing actions brought under the section,725 but they must apply federal law.726 Developments under this section illustrate the substantive importance of many jurisdictional grants and indicate how the workload of the federal courts may be increased by unexpected interpretations of such grants.727

723 § 301, 61 Stat. 156 (1947), 29 U.S.C. § 185.

724 Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). Earlier the Court had given the section a restricted reading in Association of Employees v. Westinghouse Electric Corp., 348 U.S. 437 (1955), at least in part because of constitutional doubts that § 301 cases in the absence of diversity of citizenship presented a federal question sufficient for federal jurisdiction. Id. at 449-52, 459-61 (opinion of Justice Frankfurter). In Lincoln Mills, the Court resolved this difficulty by ruling that federal law was at issue in § 301 suits and thus cases arising under § 301 presented federal questions. 353 U.S. at 457. The particular holding of Westinghouse, that no jurisdiction exists under § 301 for suits to enforce personal rights of employees claiming unpaid wages, was overturned in Smith v. Evening News Ass’n, 371 U.S. 195 (1962).

725 Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962).

726 Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). State law is not, however, to be totally disregarded. “State law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy .... Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957).

727 For example, when federal regulatory statutes create new duties without explicitly creating private federal remedies for their violation, the readiness or un-readiness of the federal courts to infer private causes of action is highly significant. While inference is an acceptable means of judicial enforcement of statutes, e.g., Texas & Pacific Ry. v. Rigsby, 241 U.S. 33 (1916), the Court began broadly to construe statutes to infer private actions only with J. I. Case Co. v. Borak, 377 U.S. 426 (1964). See Cort v. Ash, 422 U.S. 66 (1975). More recently, influenced by a separation of powers critique of implication by Justice Powell, the Court drew back and asserted it will imply an action only in instances of fairly clear congressional intent. Cannon v. University of Chicago, 441 U.S. 677 (1979); California v. Sierra Club, 451 U.S. 287 (1981); Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1 (1981); Merrill, Lynch v. Curran, 456 U.S. 353 (1982); Thompson v. Thompson, 484 U.S. 174 (1988); Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527 (1989).

The Court appeared more ready to infer private causes of action for constitutional violations, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980), but it has retreated here as well, refusing to apply Bivens when “any alternative, existing process for protecting the interest” that is threatened exists, or when “any special factors counselling hesitation” are present. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). See also Chappell v. Wallace, 462 U.S. 296, 298 (1983); Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicki, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001). “Federal common law” may exist in a number of areas where federal interests are involved and federal courts may take cognizance of such suits under their “arising under” jurisdiction. E.g., Illinois v. City of Milwaukee, 406 U.S. 91 (1972); International Paper Co. v. Ouellette, 479 U.S. 481 (1987). And see County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 236-240 (1985); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985). The Court is, however, somewhat wary of finding “federal common law” in the absence of some congressional authorization to formulate substantive rules, Texas Industries v. Radcliff Materials, 451 U.S. 630 (1981), and Congress may always statutorily displace the judicially created law. City of Milwaukee v. Illinois, 451 U.S. 304 (1981). Finally, federal courts have federal question jurisdiction of claims created by state law if there exists an important necessity for an interpretation of an act of Congress. Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).

Civil Rights Act Jurisdiction.—Perhaps the most important of the special federal question jurisdictional statutes is that conferring jurisdiction on federal district courts to hear suits challenging the deprivation under color of state law or custom of any right, privilege, or immunity secured by the Constitution or by any act of Congress providing for equal rights.728 Because it contains no jurisdictional amount provision729 (while the general federal question statute until recently did)730 and because the Court has held inapplicable the judicially-created requirement that a litigant exhaust his state remedies before bringing federal action,731 the statute has been heavily utilized, resulting in a formidable caseload, by plaintiffs attacking racial discrimination, malapportionment and suffrage restrictions, illegal and unconstitutional police practices, state restrictions on access to welfare and other public assistance, and a variety of other state and local governmental practices.732 Congress has encouraged utilization of the two statutes by providing for attorneys’ fees under § 1983,733 and by enacting related and specialized complementary statutes.734 The Court in recent years has generally interpreted § 1983 and its jurisdictional statute broadly but it has also sought to restrict to some extent the kinds of claims that may be brought in federal courts.735 It should be noted that § 1983 and § 1343(3) need not always go together, inasmuch as § 1983 actions may be brought in state courts.736

728 28 U.S.C. § 1343(3). The cause of action to which this jurisdictional grant applies is 42 U.S.C. § 1983, making liable and subject to other redress any person who, acting under color of state law, deprives any person of any rights, privileges, or immunities secured by the Constitution and laws of the United States. For discussion of the history and development of these two statutes, see Monroe v. Pape, 365 U.S. 167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978), Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two statutes originally had the same wording in respect to “the Constitution and laws of the United States,” when the substantive and jurisdictional aspects were separated and codified, § 1983 retained the all-inclusive “laws” provision, while § 1343(3) read “any Act of Congress providing for equal rights.” The Court has interpreted the language of the two statutes literally, so that while claims under laws of the United States need not relate to equal rights but may encompass welfare and regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do not spring from an act providing for equal rights may not be brought under § 1343(3). Chapman v. Houston Welfare Rights Org., supra. This was important when there was a jurisdictional amount provision in the federal question statute, but is of little significance today.

729 See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it was argued that only cases involving personal rights, that could not be valued in dollars, could be brought under § 1343(3), and that cases involving property rights, which could be so valued, had to be brought under the federal question statute. This attempted distinction was rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546-548 (1972). On the valuation of constitutional rights, see Carey v. Piphus, 435 U.S. 247 (1978). And see Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986) (compensatory damages must be based on injury to the plaintiff, not on some abstract valuation of constitutional rights).

730 28 U.S.C. § 1331 was amended in 1976 and 1980 to eliminate the jurisdictional amount requirement. Pub. L. 94-574, 90 Stat. 2721; Pub. L. 96-486, 94 Stat. 2369.

731 Patsy v. Board of Regents, 457 U.S. 496 (1982). This had been the rule since at least McNeese v. Board of Education, 373 U.S. 668 (1963). See also Felder v. Casey, 487 U.S. 131 (1988) (state notice of claim statute, requiring notice and waiting period before bringing suit in state court under § 1983, is preempted).

732 Thus, such notable cases as Brown v. Board of Education, 347 U.S. 483 (1954), and Baker v. Carr, 369 U.S. 186 (1962), arose under the statutes.

733 Civil Rights Attorneys’ Fees Award Act of 1976, Pub. L. 94-559, 90 Stat. 2641, amending 42 U.S.C. § 1988. See Hutto v. Finney, 437 U.S. 678 (1978); Maine v. Thiboutot, 448 U.S. 1 (1980).

734 Civil Rights of Institutionalized Persons Act, Pub. L. 96-247, 94 Stat. 349 (1980), 42 U.S.C. § 1997 et seq.

735 E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. Wright, 430 U.S. 651 (1977).

736 Maine v. Thiboutot, 448 U.S. 1 (1980).

Pendent Jurisdiction.—Once jurisdiction has been acquired through allegation of a federal question not plainly wanting in substance,737 a federal court may decide any issue necessary to the disposition of a case, notwithstanding that other non-federal questions of fact and law may be involved therein.738 “Pendent jurisdiction,” as this form is commonly called, exists whenever the state and federal claims “derive from a common nucleus of operative fact” and are such that a plaintiff “would ordinarily be expected to try them all in one judicial proceeding.”739 Ordinarily, it is a rule of prudence that federal courts should not pass on federal constitutional claims if they may avoid it and should rest their conclusions upon principles of state law where possible.740 But the federal court has discretion whether to hear the pendent state claims in the proper case. Thus, the trial court should look to “considerations of judicial economy, convenience and fairness to litigants” in exercising its discretion and should avoid needless decisions of state law. If the federal claim, though substantial enough to confer jurisdiction, was dismissed before trial, or if the state claim substantially predominated, the court would be justified in dismissing the state claim.741

737 Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933); Hagans v. Lavine, 415 U.S. 528, 534-543 (1974).

738 Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822-28 (1824); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175 (1909); Hurn v. Oursler, 289 U.S. 238 (1933); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

739 Osborn v. Bank, 22 U.S. at 725. This test replaced a difficult-to-apply test of Hurn v. Oursler, 289 U.S. 238, 245-46 (1933). See also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both cases using the new vernacular of “ancillary jurisdiction”).

740 Siler v. Louisville & Nashville R. Co., 213 U.S. 175 (1909); Greene v. Louisville & Interurban R.R., 244 U.S. 499 (1917); Hagans v. Lavine, 415 U.S. 528, 546-550 (1974). In fact, it may be an abuse of discretion for a federal court to fail to decide on an available state law ground instead of reaching the federal constitutional question. Schmidt v. Oakland Unified School Dist., 457 U.S. 594 (1982) (per curiam). However, narrowing previous law, the Court held in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984), held that when a pendent claim of state law involves a claim that is against a State for purposes of the Eleventh Amendment federal courts may not adjudicate it.

741 United Mine Workers v. Gibbs, 383 U.S. 715, 726-727 (1966).

A variant of pendent jurisdiction, sometimes called “ancillary jurisdiction,” is the doctrine allowing federal courts to acquire jurisdiction entirely of a case presenting two federal issues, although it might properly not have had jurisdiction of one of the issues if it had been independently presented.742 Thus, in an action under a federal statute, a compulsory counterclaim not involving a federal question is properly before the court and should be decided.743 The concept has been applied to a claim otherwise cognizable only in admiralty when joined with a related claim on the law side of the federal court, and in this way to give an injured seaman a right to jury trial on all of his claims when ordinarily the claim cognizable only in admiralty would be tried without a jury.744 And a colorable constitutional claim has been held to support jurisdiction over a federal statutory claim arguably not within federal jurisdiction.745

742 The initial decision was Freeman v. Howe, 65 U.S. (24 How.) 450 (1861), in which federal jurisdiction was founded on diversity of citizenship.

743 Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).

744 Romero v. International Terminal Operating Co., 358 U.S. 354, 380-381 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963).

745 Rosado v. Wyman, 397 U.S. 397, 400-405 (1970).

Still another variant is the doctrine of “pendent parties,” under which a federal court could take jurisdiction of a state claim against one party if it were related closely enough to a federal claim against another party, even though there was no independent jurisdictional base for the state claim.746 While the Supreme Court at first tentatively found some merit in the idea,747 in Finley v. United States,748 by a 5-to-4 vote the Court firmly disapproved of the pendent party concept and cast considerable doubt on the other prongs of pendent jurisdiction as well. Pendent party jurisdiction, Justice Scalia wrote for the Court, was within the constitutional grant of judicial power, but to be operable it must be affirmatively granted by congressional enactment.749 Within the year, Congress supplied the affirmative grant, adopting not only pendent party jurisdiction but also codifying pendent jurisdiction and ancillary jurisdiction under the name of “supplemental jurisdiction.”750

Thus, these interrelated doctrinal standards now seem well-grounded.

Protective Jurisdiction.—A conceptually difficult doctrine, which approaches the verge of a serious constitutional gap, is the concept of protective jurisdiction. Under this doctrine, it is argued that in instances in which Congress has legislative jurisdiction, it can confer federal jurisdiction, with the jurisdictional statute itself being the “law of the United States” within the meaning of Article III, even though Congress has enacted no substantive rule of decision and state law is to be applied. Put forward in controversial cases,751 the doctrine has neither been rejected nor accepted by the Supreme Court. In Verlinden B. V. v. Central Bank of Nigeria,752 the Court reviewed a congressional grant of jurisdiction to federal courts to hear suits by an alien against a foreign state, jurisdiction not within the “arising under” provision of article III. Federal substantive law was not applicable, that resting either on state or international law. Refusing to consider protective jurisdiction, the Court found that the statute regulated foreign commerce by promulgating rules governing sovereign immunity from suit and was a law requiring interpretation as a federal-question matter. That the doctrine does raise constitutional doubts is perhaps grounds enough to avoid reaching it.753

746 Judge Friendly originated the concept in Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971); Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971).

747 Aldinger v. Howard, 427 U.S. 1 (1976).

748 490 U.S. 545 (1989).

749 490 U.S. at 553, 556.

750 Act of Dec. 1, 1990, P. L. 101-650, 104 Stat. 5089, § 310, 28 U.S.C. § 1367. In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998), the Court, despite the absence of language making § 1367 applicable, held that the statute gave district courts jurisdiction over state-law claims in cases originating in state court and then removed to federal court.

751 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949); Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957); and see the bankruptcy cases, Schumacher v. Beeler, 293 U.S. 367 (1934); Williams v. Austrian, 331 U.S. 642 (1947).

Supreme Court Review of State Court Decisions.—In addition to the constitutional issues presented by § 25 of the Judiciary Act of 1789 and subsequent enactments,754 questions have continued to arise concerning review of state court judgments which go directly to the nature and extent of the Supreme Court’s appellate jurisdiction. Because of the sensitivity of federal-state relations and the delicate nature of the matters presented in litigation touching upon them, jurisdiction to review decisions of a state court is dependent in its exercise not only upon ascertainment of the existence of a federal question but upon a showing of exhaustion of state remedies and of the finality of the state judgment. Because the application of these standards to concrete facts is neither mechanical nor nondiscretionary, the Justices have often been divided over whether these requisites to the exercise of jurisdiction have been met in specific cases submitted for review by the Court.

The Court is empowered to review the judgments of “the highest court of a State in which a decision could be had.”755 This will ordinarily be the State’s court of last resort, but it could well be an intermediate appellate court or even a trial court if its judgment is final under state law and cannot be reviewed by any state appellate court.756 The review is of a final judgment below. “It must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court.”757 The object of this rule is to avoid piecemeal interference with state court proceedings; it promotes harmony by preventing federal assumption of a role in a controversy until the state court efforts are finally resolved.758 For similar reasons, the Court requires that a party seeking to litigate a federal constitutional issue on appeal of a state court judgment must have raised that issue with sufficient precision to have enabled the state court to have considered it and she must have raised the issue at the appropriate time below.759

752 461 U.S. 480 (1983).

753 E.g., Mesa v. California, 489 U.S. 121, 136-137 (1989) (would present grave constitutional problems).

754 On § 25, see supra, “Judicial Review and National Supremacy”. The present statute is 28 U.S.C. § 1257(a), which provides that review by writ of certiorari is available where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. Prior to 1988, there was a right to mandatory appeal in cases in which a state court had found invalid a federal statute or treaty or in which a state court had upheld a state statute contested under the Constitution, a treaty, or a statute of the United States. See the Act of June 25, 1948, 62 Stat. 929. The distinction between certiorari and appeal was abolished by the Act of June 27, 1988, Pub. L. 100-352, § 3, 102 Stat. 662.

755 28 U.S.C. § 1257(a). See R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE ch. 3 (6th ed. 1986).

756 Grovey v. Townsend, 295 U.S. 45, 47 (1935); Talley v. California, 362 U.S. 60, 62 (1960); Thompson v. City of Louisville, 362 U.S. 199, 202 (1960); Metlakatla Indian Community v. Egan, 363 U.S. 555 (1960); Powell v. Texas, 392 U.S. 514, 516, 517 (1968); Koon v. Aiken, 480 U.S. 943 (1987). In Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), the judgment reviewed was that of the Quarterly Session Court for the Borough of Norfolk, Virginia.

757 Market Street R.R. v. Railroad Comm’n, 324 U.S. 548, 551 (1945). See also San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981); Flynt v. Ohio, 451 U.S. 619 (1981); Minnick v. California Dep’t of Corrections, 452 U.S. 105 (1981); Florida v. Thomas, 532 U.S. 774 (2001). In recent years, however, the Court has developed a series of exceptions permitting review when the federal issue in the case has been finally determined but there are still proceedings to come in the lower state courts. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487 (1975). See also Fort Wayne Books v. Indiana, 489 U.S. 46, 53-57 (1989); Duquesne Light Co. v. Barasch, 488 U.S. 299, 304 (1989); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n.42 (1982).

758 Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67-69 (1948); Radio Station WOW v. Johnson, 326 U.S. 120, 123-124 (1945).

759 New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928); See also Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 77 (1988); Webb v. Webb, 451 U.S. 493, 501 (1981). The same rule applies on habeas corpus petitions. E.g., Picard v. Connor, 404 U.S. 270 (1972).

When the judgment of a state court rests on an adequate, independent determination of state law, the Court will not review the resolution of the federal questions decided, even though the resolution may be in error.760 “The reason is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and Federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of Federal laws, our review could amount to nothing more than an advisory opinion.”761 The Court is faced with two interrelated decisions: whether the state court judgment is based upon a nonfederal ground and whether the non-federal ground is adequate to support the state court judgment. It is, of course, the responsibility of the Court to determine for itself the answer to both questions.762

760 Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1874); Black v. Cutter Laboratories, 351 U.S. 292 (1956); Wilson v. Loew’s, Inc., 355 U.S. 597 (1958).

761 Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945).

762 E.g., Howlett v. Rose, 496 U.S. 356, 366 (1990); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958).

The first question may be raised by several factual situations. A state court may have based its decision on two grounds, one federal, one nonfederal.763 It may have based its decision solely on a nonfederal ground but the federal ground may have been clearly raised.764 Both federal and nonfederal grounds may have been raised but the state court judgment is ambiguous or is without written opinion stating the ground relied on.765 Or the state court may have decided the federal question although it could have based its ruling on an adequate, independent nonfederal ground.766 In any event, it is essential for purposes of review by the Supreme Court that it appear from the record that a federal question was presented, that the disposition of that question was necessary to the determination of the case, that the federal question was actually decided or that the judgment could not have been rendered without deciding it.767

763 Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961).

764 Wood v. Chesborough, 228 U.S. 672, 676-680 (1913).

765 Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54-55 (1934); Williams v. Kaiser, 323 U.S. 471, 477 (1945); Durley v. Mayo, 351 U.S. 277, 281 (1956); Klinger v. Missouri, 80 U.S. (13 Wall.) 257, 263 (1872); cf. Department of Mental Hygiene v. Kirchner, 380 U.S. 194 (1965).

766 Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 375-376 (1968).

767 Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S. 206 (1938); Raley v. Ohio, 360 U.S. 423, 434-437 (1959). When there is uncertainty about what the state court did, the usual practice was to remand for clarification. Minnesota v. National Tea Co., 309 U.S. 551 (1940); California v. Krivda, 409 U.S. 33 (1972). See California Dept. of Motor Vehicles v. Rios, 410 U.S. 425 (1973). Now, however, in a controversial decision, the Court has adopted a presumption that when a state court decision fairly appears to rest on federal law or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, the Court will accept as the most reasonable explanation that the state court decided the case as it did because it believed that federal law required it to do so. If the state court wishes to avoid the presumption it must make clear by a plain statement in its judgment or opinion that discussed federal law did not compel the result, that state law was dispositive. Michigan v. Long, 463 U.S. 1032 (1983). See Harris v. Reed, 489 U.S. 255, 261 n. 7 (1989) (collecting cases); Coleman v. Thompson, 501 U.S. 722 (1991) (applying the rule in a habeas case).

With regard to the second question, in order to preclude Supreme Court review, the nonfederal ground must be broad enough, without reference to the federal question, to sustain the state court judgment,768 the nonfederal ground must be independent of the federal question,769 and the nonfederal ground must be a tenable one.770 Rejection of a litigant’s federal claim by the state court on state procedural grounds, such as failure to tender the issue at the appropriate time, will ordinarily preclude Supreme Court review as an adequate independent state ground,771 so long as the local procedure does not discriminate against the raising of federal claims and has not been used to stifle a federal claim or to evade vindication of federal rights.772

768 Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 636 (1874). A new state rule cannot be invented for the occasion in order to defeat the federal claim. E.g., Ford v. Georgia, 498 U.S. 411, 420-425 (1991)

769 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164 (1917); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 290 (1958).

770 Enterprise Irrigation Dist. v. Farmers’ Mutual Canal Co., 243 U.S. 157, 164 (1917); Ward v. Love County, 253 U.S. 17, 22 (1920); Staub v. Baxley, 355 U.S. 313, 319-320 (1958).

771 Nickel v. Cole, 256 U.S. 222, 225 (1921); Wolfe v. North Carolina, 364 U.S. 177, 195 (1960). But see Davis v. Wechsler, 263 U.S. 22 (1923); Brown v. Western Ry. of Alabama, 338 U.S. 294 (1949).

772 Davis v. Wechsler, 263 U.S. 22, 24-25 (1923); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455-458 (1958); Barr v. City of Columbia, 378 U.S. 146, 149 (1964). This rationale probably explains Henry v. Mississippi, 379 U.S. 443 (1965). See also in the criminal area, Edelman v. California, 344 U.S. 357, 362 (1953) (dissenting opinion); Brown v. Allen, 344 U.S. 443, 554 (1953) (dissenting opinion); Williams v. Georgia, 349 U.S. 375, 383 (1955); Monger v. Florida, 405 U.S. 958 (1972) (dissenting opinion).

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