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Abstract

Most people — and most lawyers — would assume that the U.S. Supreme Court has jurisdiction to review any determination of federal law by an inferior court, whether state or federal. And there was a time when it was so. But the Court’s recent justiciability decisions have created a perplexing jurisdictional gap — a set of cases in which state court determinations of federal law are immune from the Supreme Court’s appellate jurisdiction. The Court has thus surrendered a portion of its supremacy and thereby undermined the policies that underlie its appellate jurisdiction.

In an effort to address this problem, the Court has created a strange exception to its justiciability doctrines that turns the rationale for appellate jurisdiction on its head. The Court has held that it may exercise appellate jurisdiction over otherwise nonjusticiable cases only where the state court has upheld the claimed federal right. As a matter of history and of doctrine, however, this is precisely the set of cases where Supreme Court review is least needed. A number of scholars have proposed attacking the problem by requiring state courts hearing federal questions of law to apply federal justiciability doctrines. But this view is difficult to justify doctrinally, and, paradoxically, it risks undermining federal interests by preventing state court enforcement of federal rights and policies in a broad swath of cases.

This Article proposes a more coherent solution to the jurisdictional gap — restoring the understanding of the Supreme Court’s appellate jurisdiction that was held by the founding generation: namely, that it extends to review of all state court determinations of federal law that are adverse to the claimed federal right. This approach finds ample support in the text and history of Article III’s grant of Supreme Court appellate jurisdiction and has two principal advantages over current doctrine and previous proposals for reform. First, it better serves the policies underlying Supreme Court appellate jurisdiction by restoring the Court’s supremacy as to all determinations of federal law by inferior courts. Second, it is more consistent with the Supreme Court’s practice in other doctrinal areas of treating its appellate jurisdiction overstate court determinations of federal law as exempt from certain constitutional restrictions on the federal judicial power. It thus eliminates a puzzling inconsistency in the Court’s treatment of its own appellate jurisdiction in different contexts.

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