State courts are the final arbiters of cases interpreting state laws and constitutions. However, there are times when cases heard in state courts can be reviewed by federal courts. The Supremacy Clause of the Constitution states that federal laws, treaties and the Constitution are the supreme laws of the land and take precedent over state laws and constitutions.
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
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
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
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
State Court Enforcement of Federal Law
Although the states' rights proponents in the Convention and in the First Congress wished to leave to the state courts the enforcement of federal law and rights rather than to create inferior federal courts, it was not long before they or their successors began to argue that state courts could not be required to adjudicate cases based on federal law. The practice in the early years was to make the jurisdiction of federal courts generally concurrent with that of state courts,18 and early Congresses imposed positive duties on state courts to enforce federal laws.19 Reaction set in out of hostility to the Embargo Acts, the Fugitive Slave Law, and other measures,20 and, in Prigg v. Pennsylvania,21 involving the Fugitive Slave Law, the Court indicated that the states could not be compelled to enforce federal law. After a long period, however, Congress resumed its former practice,22 which the Court sustained,23 and it went even further in the Federal Employers' Liability Act by not only giving state courts concurrent jurisdiction but also by prohibiting the removal of cases begun in state courts to the federal courts.24
When Connecticut courts refused to enforce an FELA claim on the ground that to do so was contrary to the public policy of the state, the Court held on the basis of the Supremacy Clause that, when Congress enacts a law and declares a national policy, that policy is as much Connecticut's and every other state's as it is of the collective United States.25 The Court's suggestion that the act could be enforced "as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion,"26 leaving the impression that state practice might in some instances preclude enforcement in state courts, was given body when the Court upheld New York's refusal to adjudicate an FELA claim that fell in a class of cases in which claims under state law would not be entertained.27 "[T]here is nothing in the Act of Congress that purports to force a duty upon such Courts as against an otherwise valid excuse."28 However, "[a]n excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source."29
The fact that a state statute divests its courts of jurisdiction not only over a disfavored federal claim, but also over an identical state claim, does not ensure that the "state law will be deemed a neutral rule of judicial administration and therefore a valid excuse for refusing to entertain a federal cause of action."30 "Although the absence of discrimination [in its treatment of federal and state law] is necessary to our finding a state law neutral, it is not sufficient. A jurisdictional rule cannot be used as a device to undermine federal law, no matter how evenhanded it may appear."31
In Testa v. Katt,32 the Court unanimously held that state courts, at least with regard to claims and cases analogous to claims and cases enforceable in those courts under state law, are required to enforce "penal" laws of the United States; the statute at issue in the case provided "that a buyer of goods at above the prescribed ceiling price may sue the seller 'in any court of competent jurisdiction.'"33 Respecting Rhode Island's claim that one sovereign cannot enforce the penal laws of another, Justice Black observed that the assumption underlying this claim flew "in the face of the fact that the States of the Union constitute a nation" and the fact of the existence of the Supremacy Clause.34
- 2 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).
- 1 Stat. 73, 85, quoted supra.
- Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).
- Fletcher 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).
- 14 U.S. (1 Wheat.) 304 (1816).
- 19 U.S. (6 Wheat.) 264 (1821).
- 19 U.S. at 379.
- 19 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).
- Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 204–05 (1824).
- See 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.
- Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
- Through the saving to suitors clause, 28 U.S.C. § 1333(1). See Madruga v. Superior Court, 346 U.S. 556, 560–61 (1954).
- See Organization of Courts, Tenure, and Compensation of Judges and Marbury v. Madison, supra. See also 28 U.S.C. § 1257.
- E.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).
- Act of March 3, 1875, 18 Stat. 470.
- Civil 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.
- See H. Wechsler, The Nationalization of Civil Liberties and Civil Rights (1969).
- Judiciary Act of 1789, §§ 9, 11, 1 Stat. 76, 78; see also id. at § 25, 1 Stat. 85.
- E.g., Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine & Spirits Act, 1 Stat. 376 (1794); Fugitive Slave Act, 1 Stat. 302 (1794); Naturalization Act of 1795, 1 Stat. 414; Alien Enemies Act of 1798, 1 Stat. 577. State courts in 1799 were vested with jurisdiction to try criminal offenses against the postal laws. 1 Stat. 733, 28. The Act of March 3, 1815, 3 Stat. 244, vested state courts with jurisdiction of complaints, suits, and prosecutions for taxes, duties, fines, penalties, and forfeitures. See Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545, 577–581 (1925).
- Embargo Acts, 2 Stat. 453, 473, 499, 506, 528, 550, 605, 707 (1808–1812); 3 Stat. 88 (1813); Fugitive Slave Act, 1 Stat. 302 (1793).
- 41 U.S. (16 Pet.) 539, 615 (1842). See also Houston v. Moore, 18 U.S. (5 Wheat.) 1, 69 (1820) (Justice Story dissenting); United States v. Bailey, 34 U.S. (9 Pet.) 238, 259 (1835) (Justice McLean dissenting). However, the Court held that states could exercise concurrent jurisdiction if they wished. Claflin v. Houseman, 93 U.S. 130 (1876), and cases cited.
- E.g., Act of June 8, 1872, 17 Stat. 323.
- Claflin v. Houseman, 93 U.S. 130 (1876).
- 35 Stat. 65 (1908), as amended, 45 U.S.C. §§ 51–60.
- Second Employers' Liability Cases, 223 U.S. 1 (1912).
- 223 U.S. at 59.
- Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929).
- 279 U.S. at 388. For what constitutes a valid excuse, compare Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950), with McKnett v. St. Louis & S.F. Ry., 292 U.S. 230 (1934). It appears that generally state procedure must yield to federal when it would make a difference in outcome. Compare Brown v. Western Ry. of Alabama, 338 U.S. 294 (1949), and Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952), with Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916).
- Howlett v. Rose, 496 U.S. 356, 371 (1990). See also Felder v. Casey, 487 U.S. 131 (1988).
- Haywood v. Drown, 556 U.S. ___, No. 07-10374, slip op. at 8–9 (2009) (striking down New York statute that gave the state's supreme courts—its trial courts of general jurisdiction – jurisdiction over suits brought under 42 U.S.C. § 1983, except in the case of suits seeking money damages from corrections officers, whether brought under federal or state law).
- 556 U.S. ___, No. 07-10374, slip op. at 9 (New York statute found, "contrary to Congress's judgment [in 42 U.S.C. § 1983,] that all persons who violate federal rights while acting under color of state law shall be held liable for damages").
- 330 U.S. 386 (1947).
- 330 U.S. at 387.
- 330 U.S. at 389. See, for a discussion as well as an extension of Testa, FERC v. Mississippi, 456 U.S. 742 (1982). Cases since Testa requiring state court enforcement of federal rights have generally concerned federal remedial laws. E.g., Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). The Court has approved state court adjudication under 42 U.S.C. § 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980), but, curiously, in Martinez v. California, 444 U.S. 277, 283 n.7 (1980) (emphasis by Court), it noted that it has never considered . . . the question whether a State must entertain a claim under 1983. See also Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 234 n.7 (1987) (continuing to reserve question). But, with Felder v. Casey, 487 U.S. 131 (1988), and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems dubious that state courts could refuse. Enforcement is not limited to federal statutory law; federal common law must similarly be enforced. Free v. Bland, 369 U.S. 663 (1962).