ArtIII.S1.1.1.2.3.1 Federal—State Court Relations: Overview

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Judicial Review and National Supremacy

Even many persons who have criticized the concept of judicial review of congressional acts by the federal courts have thought that review of state acts under federal constitutional standards is soundly based in the Supremacy Clause, which makes the Constitution, laws enacted pursuant to the Constitution, and treaties the supreme law of the land,1 and which Congress effectuated by enacting § 25 of the Judiciary Act of 1789.2 Five years before Marbury v. Madison, the Court held invalid a state law as conflicting with the terms of a treaty,3 and seven years after Chief Justice Marshall's opinion it voided a state law as conflicting with the Constitution.4

Virginia provided a states' rights challenge to a broad reading of the Supremacy Clause and to the validity of § 25 in Martin v. Hunter's Lessee5 and in Cohens v. Virginia.6 In both cases, it was argued that while the courts of Virginia were constitutionally obliged to prefer the supreme law of the land, as set out in the Supremacy Clause, over conflicting state constitutional provisions and laws, it was only by their own interpretation of the supreme law that they as courts of a sovereign state were bound. Furthermore, it was contended that cases did not arise under the Constitution unless they were brought in the first instance by someone claiming such a right, from which it followed that the judicial power of the United States did not extend to such cases unless they were brought in the first instance in the courts of the United States. But Chief Justice Marshall rejected this narrow interpretation: A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either.7 Passing on to the power of the Supreme Court to review such decisions of the state courts, he said: Let the nature and objects of our Union be considered: let the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction.8

Problems Raised by Concurrency

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Constitution established a system of government in which total power, sovereignty, was not unequivocally lodged in one level of government. In Chief Justice Marshall's words, our complex system [presents] the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union. . . . Naturally, in such a system, contests respecting power must arise.9 Contests respecting power may frequently arise in a federal system with dual structures of courts exercising concurrent jurisdiction in a number of classes of cases. Too, the possibilities of frictions grow out of the facts that one set of courts may interfere directly or indirectly with the other through injunctive and declaratory processes, through the use of habeas corpus and removal to release persons from the custody of the other set, and through the refusal by state courts to be bound by decisions of the United States Supreme Court. The relations between federal and state courts are governed in part by constitutional law, with respect, say, to state court interference with federal courts and state court refusal to comply with the judgments of federal tribunals; in part by statutes, with respect to the federal law generally enjoining federal court interference with pending state court proceedings; and in part by self-imposed rules of comity and restraint, such as the abstention doctrine, all applied to avoid unseemly conflicts, which, however, have at times occurred.

Subject to congressional provision to the contrary, state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except suits between states, those to which the United States is a party, those to which a foreign state is a party, and those within the traditional admiralty jurisdiction.10 Even within this last category, however, state courts, though unable to prejudice the harmonious operation and uniformity of general maritime law,11 have concurrent jurisdiction over cases that occur within the maritime jurisdiction when such litigation assumes the form of a suit at common law.12 Review of state court decisions by the United States Supreme Court is intended to protect the federal interest and promote uniformity of law and decision relating to the federal interest.13 The first category of conflict surfaces here. The second broader category arises from the fact that state interests, actions, and wishes, all of which may at times be effectuated through state courts, are variously subject to restraint by federal courts. Although the possibility always existed,14 it became much more significant and likely when, in the wake of the Civil War, Congress bestowed general federal question jurisdiction on the federal courts,15 enacted a series of civil rights statutes and conferred jurisdiction on the federal courts to enforce them,16 and most important proposed and saw to the ratification of the three constitutional amendments, especially the Fourteenth, which made an ever-increasing number of state actions subject to federal scrutiny.17

Conflicts of Jurisdiction: Rules of Accommodation

Federal courts primarily interfere with state courts in three ways: by enjoining proceedings in them, by issuing writs of habeas corpus to set aside convictions obtained in them, and by adjudicating cases removed from them. With regard to all three but particularly with regard to the first, there have been developed certain rules plus a statutory limitation designed to minimize needless conflict.

Comity

[T]he notion of ‘comity,’ Justice Black asserted, is composed of a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism’. . . .18 Comity is a self-imposed rule of judicial restraint whereby independent tribunals of concurrent or coordinate jurisdiction act to moderate the stresses of coexistence and to avoid collisions of authority. It is not a rule of law but one of practice, convenience, and expediency,19 which persuades but does not command.

Footnotes

  1.  Jump to essay-12 W. Crosskey, supra at 989. See the famous remark of Holmes: I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as the laws of the several States. O. Holmes, Collected Legal Papers 295–296 (1921).
  2.  Jump to essay-21 Stat. 73, 85, quoted supra.
  3.  Jump to essay-3Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
  4.  Jump to essay-4Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). The case came to the Court by appeal from a circuit court and not from a state court under § 25. Famous early cases coming to the Court under § 25 in which state laws were voided included Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819); and McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
  5.  Jump to essay-514 U.S. (1 Wheat.) 304 (1816).
  6.  Jump to essay-619 U.S. (6 Wheat.) 264 (1821).
  7.  Jump to essay-719 U.S. at 379.
  8.  Jump to essay-819 U.S. at 422–23. Justice Story traversed much of the same ground in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816). In Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), the Wisconsin Supreme Court had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, raising again the Virginia arguments. Chief Justice Taney emphatically rebuked the assertions on grounds both of dual sovereignty and national supremacy. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the states from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree perhaps beyond that envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 U.S. 248 (1880), the concepts were again thrashed out with the refusal of a Virginia court to enforce a mandate of the Supreme Court. See also Cooper v. Aaron, 358 U.S. 1 (1958).
  9.  Jump to essay-9Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 204–05 (1824).
  10.  Jump to essay-10See 28 U.S.C. §§ 1251, 1331 et seq. Indeed, the presumption is that state courts enjoy concurrent jurisdiction, and Congress must explicitly or implicitly confine jurisdiction to the federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–84 (1981); Tafflin v. Levitt, 493 U.S. 455 (1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). Federal courts have exclusive jurisdiction of the federal antitrust laws, even though Congress has not spoken expressly or impliedly. See General Investment Co. v. Lake Shore & Michigan Southern Ry., 260 U.S. 261, 287 (1922). Justice Scalia has argued that, inasmuch as state courts have jurisdiction generally because federal law is law for them, Congress can provide exclusive federal jurisdiction only by explicit and affirmative statement in the text of the statute, Tafflin v. Levitt, 493 U.S. at 469, but as can be seen that is not now the rule.
  11.  Jump to essay-11Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
  12.  Jump to essay-12Through the saving to suitors clause, 28 U.S.C. § 1333(1). See Madruga v. Superior Court, 346 U.S. 556, 560–61 (1954).
  13.  Jump to essay-13See Organization of Courts, Tenure, and Compensation of Judges and Marbury v. Madison, supra. See also 28 U.S.C. § 1257.
  14.  Jump to essay-14E.g., by a suit against a state by a citizen of another state directly in the Supreme Court, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), which was overturned by the Eleventh Amendment; by suits in diversity or removal from state courts where diversity existed, 1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 77, and, subsequently, by removal from state courts of certain actions. 3 Stat. 198. And for some unknown reason, Congress passed in 1793 a statute prohibiting federal court injunctions against state court proceedings. See Toucey v. New York Life Ins. Co., 314 U.S. 118, 120–32 (1941).
  15.  Jump to essay-15Act of March 3, 1875, 18 Stat. 470.
  16.  Jump to essay-16Civil Rights Act of 1871, § 1, 17 Stat. 13. The authorization for equitable relief is now 42 U.S.C. § 1983, while jurisdiction is granted by 28 U.S.C. § 1343.
  17.  Jump to essay-17See H. Wechsler, The Nationalization of Civil Liberties and Civil Rights (1969).
  18.  Jump to essay-18Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100 (1981), with id. at 119–25 (Justice Brennan concurring, joined by three other Justices).
  19.  Jump to essay-19Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 458, 488 (1900). Recent decisions emphasize comity as the primary reason for restraint in federal court actions tending to interfere with state courts. E.g., O’Shea v. Littleton, 414 U.S. 488, 499–504 (1974); Huffman v. Pursue, Ltd., 420 U.S. 592, 599–603 (1975); Trainor v. Hernandez, 431 U.S. 434, 441 (1977); Moore v. Sims, 442 U.S. 415, 430 (1979). The Court has also cited comity as a reason to restrict access to federal habeas corpus. Francis v. Henderson, 425 U.S. 536, 541 and n.31 (1976); Wainwright v. Sykes, 433 U.S. 72, 83, 88, 90 (1977); Engle v. Isaac, 456 U.S. 107, 128–29 (1982). See also Rosewell v. LaSalle National Bank, 450 U.S. 503 (1981); Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100 (1981) (comity limits federal court interference with state tax systems); Levin v. Commerce Energy, Inc., 560 U.S. ___, No. 09-223, slip op. (2010) (comity has particular force in cases challenging constitutionality of state taxation of commercial activities). And see Missouri v. Jenkins, 495 U.S. 33 (1990).