My 2009 Judiciary Act

In four previous posts, I discussed proposals offered by a group of law professors for a Judiciary Act of 2009. The professors propose various changes to the structure and work of the Supreme Court. My first post on this proposed Judiciary Act is here. My second post is here. My third post is here. My fourth post is here

In this final post in the series, I present the change I argue for in the paper I have just posted to SSRN called When the Supreme Court is Not Supreme.

The paper shows that state courts have always enjoyed a good deal of independence to interpret the meaning of the U.S. Constitution.

Historically, this independence was codified in the provision of the 1789 Judiciary Act that limited review by the Supreme Court of decisions by state courts that rejected constitutional rights asserted against state government. If the state court held that state government had violated a constitutional right, the Supreme Court could not review that decision. In an earlier article, The Bill of Rights in the Early State Courts, I explored how this framework allowed state courts to apply provisions of the Bill of Rights against state government prior to incorporation of those rights via the Fourteenth Amendment.

Today, I show, even while the Supreme Court has broad authority to review state court decisions on federal questions, a variety of statutory and doctrinal factors prevent or limit review in a good number of cases. State courts can, and do, decide issues of constitutional law free from review by the Supreme Court.

The paper proposes formalizing the authority state courts exercise today in practice. I advocate, in essence, a resurrection of the rule from the 1789 Judiciary Act that prevented the Supreme Court from reviewing state court decisions upholding constitutional rights asserted against state government. State courts would, therefore, be permitted to expand upon, but not to narrow, federal constitutional rights as construed by the Supreme Court. For reasons I explore in the paper, I would limit this rule to cases involving rights under the criminal procedural provisions of the Constitution and the Fifth Amendment’s Takings Clause. But the basic idea is that state courts would once again, as a formal matter, have some independent authority to interpret the federal Constitution.

Court watchers will know that Justice Stevens has long advocated that the Court deny review in cases in which the only issue is that a state court has arguably over-enforced the Constitution against state government. Stevens set out his views, with renewed energy in his dissenting opinion in Kansas v. Marsh (2006), prompting a spirited response by Justice Scalia. My paper engages the analysis in Marsh and in earlier cases in which Stevens has expressed a similar view.

In my paper, I also anticipate a variety of objections to my proposal and show that the negative effects can be minimized and that the benefits are considerable.

At SSRN, I have posted the first draft of When the Supreme Court is Not Supreme. Comments are very welcome.

This is my last post during this visit to Concurring Opinions. With my thanks to Dan for the invitation, I now return to less important endeavors.

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