ASYMMETRICAL JURISDICTION

* Matthew I. Hall

Most people—and most lawyers—would assume that the U.S. Supreme Court has jurisdiction to review any determination of federal by an inferior court, whether state or federal. And there was a time when it was so. But the Court’s recent 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

* Assistant Professor of Law, University of Georgia School of Law. J.D., cum laude, University of Michigan Law School, 1999. I am grateful to Michael Allen, Richard Friedman, Paul Heald, David Horton, Hillel Levin, Marcia McCormick, Tim Meyer, Rigel Oliveri, James Pfander, Lori Ringhand, Bo Rutledge, Jamelle Sharpe, Steve Vladeck, and Michael Wells for helpful suggestions on earlier drafts. I am particularly indebted to Andrew Bernick, Dan Coenen, Ben Means, and Joan Steinman for exceptionally helpful discussions and comments on multiple drafts. The Article also benefitted from the comments of the participants in the 2010 Junior Faculty Federal Courts Workshop at the University of Illinois, the 2010 SEALS Conference, and faculty workshops at the University of Georgia, the University of Missouri, and the University of South Carolina. Erica Copeland and Jennifer Pridgeon provided excellent research assistance. The author is also indebted to the editors of the UCLA Law Review for excellent editorial work, and most of all to Erica, Elena, and Kaija for their support.

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Court’s practice in other doctrinal areas of treating its appellate jurisdiction over state 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.

INTRODUCTION ...... 1259 I. THE EVOLUTION OF JURISDICTIONAL ASYMMETRY ...... 1262 A. The Founders’ Balance ...... 1263 B. Upsetting the Balance ...... 1265 1. The Prudential Precursors of Modern Justiciability Doctrines...... 1266 2. The Evolution of Federal Justiciability Do