Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2003 Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases Henry Paul Monaghan Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Recommended Citation Henry P. Monaghan, Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases, 103 COLUM. L. REV. 1919 (2003). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/164 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 103 DECEMBER 2003 NO. 8 ARTICLES SUPREME COURT REVIEW OF STATE-COURT DETERMINATIONS OF STATE LAW IN CONSTITUTIONAL CASES Henry Paul Monaghan* The decision in Bush *v. Gore and particularly Chief Justice Rehn- quist's concurringopinion were widely criticized for their unwarrantedintru- sion upon the "authoritative"status of the Florida Supreme Court in deter- mining the meaning of Floridaelection law. This Article rejects the merits of that criticism. It proposes the thesis that the Supreme Court has ancillary jurisdiction to review state-court determinations of state law in cases where the Constitution or ftderal law imposes a duty of fidelity to prior state law (ti) and the claim is that the state court materially and impermissibly de- partedfrom that law at a later point in time (t2). Using Bush v. Gore as a vehicle and building upon an examination of the adequate nonfederal ground doctrine and the implications of the Supremacy Clause, this Article establishes that some Supreme Court reexamination of state-court determina- tions of state law "antecedent" to the federal claim is not only indisputable, but quite familiar. It goes on to argue for independent judgment, rather than the more familiar 'fairsupport" standard, as the ultimate measure of the Supreme Court'sjurisdictional authority to reexamine state law, support- ing this normative assertion with extensive evidence from Supreme Court practice since the founding. The Article concludes by suggesting that the distinction between the two standards is important to litigants and should (but may not) be important to the Court because, contrary to critics' claims, in appropriate cases-Bush v. Gore among them-independentjudgment can serve, rather than undermine, the values of "OurFederalism." INTRODUCTION Bush v. Gore' received a harsh reception from much of the legal acad- emy.2 A January 13, 2001, full page advertisement in the New York Times * Harlan Fiske Stone Professor of Constitutional Law, Columbia University. This Article is dedicated to the memory of my colleague Herbert Wechsler, master scholar and master teacher, who with his customary acuteness quite plainly saw it all. Thanks to many; special thanks to Brad Meissner and Stuart Naifeh. By way of full disclosure, the writer voted (as always) for his fellow Democrats, Messrs. Gore and Lieberman. 1. 531 U.S. 98 (2000). 2. "Bush v. Gore provoked from the legal academy a response that was without precedent. Never before had a decision of the Supreme Court been subjected by large numbers of law professors to such swift, intense, and uncompromising denunciation in the 1919 1920 COLUMBIA LAW REVIEW [Vol. 103:1919 signed by 554 "Law Professors for the Rule of Law" charged (in large boldface) that "By Stopping the Vote Count in Florida, The U.S. Su- preme Court Used Its Power To Act as Political Partisans, NotJudges of a Court of Law."3 Their stirring peroration stated: By taking power from the voters, the Supreme Court has tar- nished its own legitimacy. As teachers whose lives have been 4 dedicated to the rule of law, we protest. Shortly thereafter, Professor Ackerman, also expressing "rule of law" dis- tress, announced his "reluctant[ ]"conclusion that halting the Florida re- 5 count was "a blatantly partisan act, without any legal basis whatsoever." And once again exhibiting his characteristic flair for understatement, Professor Dershowitz stated that the Court's decision "may be ranked as 6 the single most corrupt decision in Supreme Court history." popular press . Peter Berkowitz & Benjamin Wittes, The Professors and Bush v. Gore, Wilson Q., Autumn 2001, at 76, 78. For a more inclusive survey of academic criticism, see Louise Weinberg, When Courts Decide Elections: The Constitutionality of Bush v. Gore, 82 B.U. L. Rev. 609, 612-18 (2002). 3. Advertisement, 554 Law Professors Say, N.Y. Times, Jan. 13, 2001, at A7 [hereinafter 554 Law Professors Say]. "The number of subscribers eventually reached 673, from 137 law schools." Jesse H. Choper, Why the Supreme Court Should Not Have Decided the Presidential Election of 2000, 18 Const. Comment. 335, 351 n.62 (2001). 4. 554 Law Professors Say, supra note 3. The law professors never explained why they were especially aggrieved by the Court's alleged misconduct. "[I]f you were going to find an act of betrayal on the Court's part it would have to be a betrayal of the country, in no special way a betrayal of the law professoriate." Frank I. Michelman, Tushnet's Realism, Tushnet's Liberalism, 90 Geo. L.J. 199, 213 (2001). 5. Bruce Ackerman, The Court Packs Itself, Am. Prospect, Feb. 12, 2001, at 42, 48. Professor Ackerm'an suffered "rule of law" distress because his "entire academic career... has been one long struggle against the slogan that law is just politics." Id. Professor Ackerman went on to argue that the majority's conduct was designed to perpetuate its own conservative constitutional philosophy. Accordingly, he insisted that the Senate should not confirm any of President Bush's nominees to the Court. Id. For other examples of ad hominem criticism, see Berkowitz & Wittes, supra note 2, at 79-80. The "self perpetuation" criticism is echoed even by non-conspiracy critics. See, e.g., Choper, supra note 3, at 346-47 & n.45; Paul D. Carrington & H. Jefferson Powell, The Right to Self- Government After Bush v. Gore 2 (Duke Univ. Sch. of Law, Pub. L. & Legal Theory Working Paper Series, Working Paper No. 26, Dec. 2001), available at http:// www.law.duke.edu/pub/selfgov/ (on file with the Columbia Law Review). 6. Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 174 (2001). He added: "It is the uniquely corrupt nature of the decision ... that explains the extraordinary vituperativeness of the language employed by so many usually cautious critics of the high court." Id. This book, which quickly made the New York Times best-seller list, is now available in a paperback edition. The "book" strikes this reader as a much padded article. Professor Dershowitz's fundamental claim, like that of many other critics, is that the result would have been different if the case were Gore v. Bush. (Does that indictment imply that the four dissenters would then have voted to halt the recount?) His evidence, endorsed by other critics, e.g., Choper, supra note 3, at 348-52, is that the majority acted out of character. The majority Justices generally strongly defend state prerogatives. In this case, Dershowitz said, consistency required deference to the Florida Supreme Court. Dershowitz, supra, at 95-120, Professor Dershowitz's animating premise is his claim that the current Court has shown an inexorable commitment to the vindication of state prerogatives. See in 20031 STATE LAW IN CONSTITUTIONAL CASES 1921 A subsequent, and sometimes only slightly less angry, wave of criti- cism presented Bush v. Gore as the showcase for a much larger (and to those commentators regrettable) transformative change: the rise of 'judi- cial supremacy" (a term of splendidly indefinite content). The decision, wrote Professor Kramer, is "surely the capstone of the Rehnquist Court's campaign to control all things constitutional. '7 Professor Tribe instructs us that the decision provides "an unusually clear window into much that is lamentable about how [the majority justices] discharge their role: with utter disdain for democracy and its pluralistic institutions and with eyes fixed firmly on surface appearances rather than underlying realities."8 "The Court's self-confidence in matters constitutional," he adds, "is matched only by its disdain for ...other actors in constitutional debate." 9 particular his second and fourth chapters, id. at 55-94, 121-72. This is surely contestable. See, e.g., Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429, 434 (2002) (noting, as one example, that "[w]hen federalism and substantive conservatism come into conflict, substantive conservatism frequently dominates"). Moreover, Professor Pildes contends that the lineup of the Justices in Bush v. Gore generally coincides with their positions in prior election law cases. Richard H. Pildes, Democracy and Disorder, 68 U. Chi. L. Rev. 695, 696 (2001). See also the splendid article by DanielJ. Meltzer, The Supreme Court's Judicial Passivity, 2002 Sup. Ct. Rev. 343. This wide-ranging article, essentially an attack on "textualism," contains an extensive review of the Court's recent preemption cases and the literature they spawned. His conclusion: When the Court sees no serious issue of congressional power, the Court, especially the Bush v. Gore majority, readily finds federal preemption and in the process ignores textualism. Id. at 362-78. 7. Larry D. Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 Harv. L. Rev. 5, 153 (2001); see also Linda Greenhouse, Learning to Live with Bush v. Gore, 4 Green Bag 2d 381, 388-89 (2001). "[Bush v. Gore] reflects a chronic and growing disrespect for the institutions of self-government." Carrington & Powell, supra note 5, at 2-3.