Schiavo and Rooker-Feldman

My ever-blawgtastic colleague Michael posts details about the UM Law Review's upcoming Symposium on the Schiavo case, a topic near and dear to lots of people's hearts, especially down here in Florida. I, unfortunately, will miss the Symposium in favor of one of my co-clerks' weddings, so, hop into the time machine kids -- back to last March we go...

What's always fascinated me, the Federal Courts geek, about Schiavo is Judge Birch's special concurrence in the denial of rehearing en banc in the Eleventh Circuit. In his opinion, Judge Birch makes two important (and, to my mind, unique) points:

1. The district court and Eleventh Circuit panel were wrong to assume the constitutionality of Public Law 109-3 [the statute conferring jurisdiction upon the federal courts in Schiavo] because, after Steel Co., it's no longer appropriate to assume hypothetical jurisdiction, even if that means reaching a constitutional question that might otherwise be avoidable.
2. Reaching the constitutional question, Public Law 109-3 was unconstitutional because it prescribed a rule of decision, in contravention of the celebrated, if amorphous, rule of United States v. Klein.

Suffice it to say, I think Judge Birch may have been 2-2 on the merits, but batted only .500 on the rationale.

Let me explain the easy part first. Taken at face value, Steel Co. does seem to do away with hypothetical jurisdiction in fairly broad strokes. That is, it simply isn't true, after Steel Co., that federal courts can reach the (easier) merits of a case by assuming that Article III is satisfied (whether as to jurisdiction, standing, etc.), except perhaps when it's entirely obvious that it is... So, assuming that a statute conferring jurisdiction upon the federal courts is constitutional, particularly where there is some doubt thereto, seems to be irreconcilable with the spirit of Steel Co., constitutional avoidance canons notwithstanding. Otherwise, Steel Co. wouldn't mean anything, for it stands to reason that hypothetical jurisdiction includes hypothetically constitutional jurisdictional statutes.

To be fair, this seems a bit absurd, but the absurdity is, I think, a necessary result of Steel Co. So blame Justice Scalia, not Judge Birch.

The second point is, of course, the harder one. What Klein actually holds is, and always has been, a matter of some debate. But what I've always taken to be Judge Birch's central point -- that Congress can't prescribe too many procedures for courts' review of particular cases -- doesn't seem to even remotely implicate Klein's ratio decidendi. It's not as if Congress instructed the federal courts on what to do substantively with a particular class of cases; it only provided procedural instructions, which it does all the time (see, e.g., AEDPA, PLRA, etc.). That is, if Judge Birch is right, then a whole lot of statutes are unconstitutional for the same reason...

But just because there's no Klein problem doesn't mean that there's no constitutional problem. Which brings me to the real motivation for my post (as the title suggests): What about Rooker-Feldman?

We often make fun of the big R-F, which, for the uninitiated, is the fairly simple notion that lower federal courts lack jurisdiction to entertain lawsuits that are, in effect, appeals of final state court judgments. [The doctrine gets its name from the two cases from which it derives, shockingly named Rooker and Feldman, decided by the Supreme Court 60 years apart. Last Term, though, the Court narrowed the doctrine somewhat in the Saudi Basic case, handed down the same day as Judge Birch's Schiavo special concurrence.]

So what does all of this have to do with Schiavo? Well, Rooker-Feldman has long since been explained as arising out of the "negative implication" of 28 U.S.C. [sec.] 1257, the statute that gives the Supreme Court appellate jurisdiction from certain final decisions of state courts. The theory, such as it is, is that by expressly providing appellate jurisdiction from the states in the Supreme Court, Congress precluded it from the lower courts. Because Rooker-Feldman is a "statutory rule," then, Congress can certainly legislate around it, as, in Public Law 109-3, it did.

But as we learn in Federal Courts, there is an entire class of cases that can be brought in federal court, but that, when brought in state court, are not subject to Supreme Court review -- diversity cases. That is, if Rooker-Feldman only follows from the "negative implication" of Section 1257, then it wouldn't apply where a diversity action in federal court was brought effectively as an appeal of a state court decision, because that's not a class of cases where Congress _has_ provided the Supreme Court with appellate jurisdiction from the states, exclusive or otherwise. To my knowledge, though, no court has ever even remotely suggested this distinction... [for full disclosure, I've only done cursory research on the question.]

But that might lead to a separate supposition -- what if Rooker-Feldman were, at least at its core, actually protecting a constitutional federalism interest, and so has an existence separate and distinct from the negative implication of [sec.] 1257? That might simultaneously explain two things: (1) Why no one's ever made the above distinction vis-a-vis diversity cases in state court; and (2) why Judge Birch was right, after all... For if Rooker-Feldman is, at least at its core, a constitutional rule, then it's axiomatic that Congress can't legislate around it, and that Public Law 109-3 is therefore unconstitutional.

Either way, it's a fascinating case, through and through, and a Symposium not to be missed (except, apparently, by me). Doh!