Article III, Section 2, Clause 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Supreme Court’s appellate jurisdiction includes the authority to review decisions of both lower federal courts and state courts.1 The current statute authorizing Supreme Court review of state court decisions allows the Court to review the judgments of “the highest court of a State in which a decision could be had.” 2 This is often the state’s court of last resort, but it may be an intermediate appellate court or a trial court, if its judgment is final under state law and cannot be reviewed by any state appellate court.3 The Court has held that it may only review final state court judgments. Such a judgment “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.” 4 The object of this rule is to avoid piecemeal interference with state court proceedings; it promotes harmony by preventing federal intervention until the state court efforts are finally resolved.5 For similar reasons, the Court requires that a party seeking to litigate a federal constitutional issue on appeal from a state court judgment must have raised the issue in state court at an appropriate time and with sufficient precision to allow the state court to consider it.6

When the judgment of a state court rests on an adequate, independent ground based on state law, the Court will not review any federal question presented, even if the state court decided the federal question incorrectly.7 The Court has stated that the reason for this rule is “obvious” and “is found in the partitioning of power between the state and Federal judicial systems and in the limitations of our own jurisdiction.” 8 The Court further explained, “Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. . . . 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.” 9 Thus, when deciding whether to review a state court judgment, the Court faces two interrelated decisions: (1) whether the state court judgment is based upon a nonfederal ground and (2) whether the nonfederal ground is adequate to support the state court judgment. It is the responsibility of the Court to determine for itself the answer to both questions.10

The first question, whether a state court judgment is based on a nonfederal ground, may arise in several factual situations. A state court may have based its decision on two grounds, one federal and one nonfederal.11 Alternatively, a state court may have based its decision solely on a nonfederal ground, but the federal ground may have been clearly raised.12 In other cases, both federal and nonfederal grounds may have been raised but the state court judgment is ambiguous or is without a written opinion stating the ground relied on.13 Or the state court may have decided the federal question although it could have based its ruling on an adequate, independent nonfederal ground.14 For the Supreme Court to review a state court decision, it is necessary 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, and that the federal question was actually decided or that the judgment could not have been rendered without deciding it.15

Several factors affect the answer to the second question, whether the nonfederal ground is adequate to support the decision. 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;16 it must be independent of the federal question;17 and it must be tenable.18 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,19 so long as the local procedure does not discriminate against raising federal claims and has not been used to stifle a federal claim or to evade vindication of federal rights.20

Footnotes

1

For additional discussion of the relationship between state and federal courts, see ArtIII.S1.6.1 Overview of Relationship Between Federal and State Courts.

2

28 U.S.C. § 1257(a). See R. Stern & E. Gressman, Supreme Court Practice ch. 3 (6th ed. 1986).

3

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 Cmty. 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.

4

Market St. Ry. v. R.R. Comm’n, 324 U.S. 548, 551 (1945). See also San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981); Flynt v. Ohio, 451 U.S. 619 (1981); Minnick v. Cal. Dep’t of Corrections, 452 U.S. 105 (1981); Florida v. Thomas, 532 U.S. 774 (2001). 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 Broad. Corp. v. Cohn, 420 U.S. 469, 476–487 (1975). See also Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (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).

5

Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62, 67–69 (1948); Radio Station WOW v. Johnson, 326 U.S. 120, 123–24 (1945).

6

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928); See also Bankers Life & Cas. 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).

7

Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Black v. Cutter Labs., 351 U.S. 292 (1956); Wilson v. Loew’s, Inc., 355 U.S. 597 (1958).

8

Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945). Whereas declining to review judgments of state courts that rest on an adequate and independent determination of state law protects the sovereignty of states, the Court has emphasized that review of state court decisions that invalidate state laws based on interpretations of federal law, “far from undermining state autonomy, is the only way to vindicate it” because a correction of a state court’s federal errors necessarily returns power to the state government. Kansas v. Carr, 136 S. Ct. 633, 641 (2016) (quoting Kansas v. Marsh, 548 U.S. 163, 184 (2006) (Scalia, J., concurring)).

9

Id. For additional discussion of advisory opinions, see ArtIII.S2.C1.4.1 Overview of Advisory Opinions.

10

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

11

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

12

Wood v. Chesborough, 228 U.S. 672, 676–80 (1913).

13

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. Dep’t of Mental Hygiene v. Kirchner, 380 U.S. 194 (1965).

14

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

15

Sw. 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 previous practice was to remand for clarification. Minnesota v. Nat’l Tea Co., 309 U.S. 551 (1940); California v. Krivda, 409 U.S. 33 (1972). See Cal. Dep’t of Motor Vehicles v. Rios, 410 U.S. 425 (1973). 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).

16

Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 636 (1875). 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).

17

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

18

Enter. Irrigation Dist., 243 U.S. at 164; Ward v. Love Cnty., 253 U.S. 17, 22 (1920); Staub v. City of Baxley, 355 U.S. 313 (1958).

19

Beard v. Kindler, 558 U.S. 53 (2009) (firmly established procedural rule adequate state ground even though rule is discretionary). Accord, Walker v. Martin, 562 U.S. 307 (2011). See also 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. W. Ry. of Ala., 338 U.S. 294 (1949).

20

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).