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Thursday, May 28, 2009

The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown

For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here).  I guess between the Sotomayor nomination, the Prop 8 ruling, and the Supreme Court's overruling of Michigan v. Jackson, we fed courts geeks get left behind...

But before the decision fades into obscurity, I wanted to flag the one thing about it that I found noteworthy -- Part II of Justice Thomas's dissent.

By way of introduction, the issue in Haywood is a classic fed courts problem: Under New York law, the State substitutes itself as the defendant in any damages action against a corrections officer brought in the New York state courts.  But because states cannot be defendants to claims under 42 U.S.C. 1983, the New York law has the effect (although not the purpose) of barring a certain subset of 1983 claims from the state courts. The question presented was whether, as such, the New York law in question violates the Supremacy Clause (the New York Court of Appeals said no, albeit in a sharply divided 4-3 ruling).

For the majority, Justice Stevens reversed, concluding that the New York law is not a neutral jurisdictional rule, and therefore violates the antidiscrimination principle set out in the Court's prior precedents (e.g., Testa v. Katt), pursuant to which states may not discriminate against federal question suits.  Justice Thomas dissented, and in the only part in which he was joined by the other three dissenters (the Chief Justice and Justices Scalia and Alito), he argued for why he believes New York's statute was "neutral," disagreeing with the majority's application of precedent.

More interesting, though, is Part II of Justice Thomas's dissent (in which he was writing only for himself).

  Leaving aside his disagreement over the application of precedent, Justice Thomas apparently takes issue with the Court's entire jurisprudence in the field, arguing that "There is no textual or historical support for the Court’s incorporation of this antidiscrimination principle into the Supremacy Clause." He then proceeds to devote half of his 37-page dissent (to a 12-page majority opinion) to explaining why "The supremacy of federal law . . . is not impugned by a State’s decision to strip its local courts of subject-matter jurisdiction to hear certain federal claims." Put another way, Justice Thomas sees no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts, even when the same state courts are open to comparable claims under state law.

To me, this is a startling argument. Reasonable people will disagree about whether state courts ever have to hear any class of federal question lawsuits without respect to their jurisdiction over comparable state-law claims, and the Supreme Court has assiduously avoided answering that question. But to suggest that states are free to discriminate against federal question lawsuits under almost any circumstance is to turn the Madisonian Compromise on its head, and to invert the Founders' unquestioned belief that state courts, rather than the lower federal courts, would be the more frequent and reliable adjudicator of federal questions.

I often get in trouble with some of my friends because I find deep principles behind a lot of Justice Thomas's jurisprudence, even when I fundamentally disagree with the assumptions behind those principles.  Here, though, I'm not sure what the deep principle is, other than an absolute defense of state autonomy at the expense of the supremacy of federal law... If anything, though, such an absolutist view is actually demeaning to state courts, because it undermines the significant role they were always meant to play in interpreting federal law -- just so long as they came to the federal law neutrally.

Posted by Steve Vladeck on May 28, 2009 at 08:45 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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I agree with you that Thomas is disputing the entire body of anti-discrimination Supremacy Clause jurisprudence. But the sole basis for his quarrel is that neither the text of the Supremacy Clause nor the text of any federal statute in any prior precedent affirmatively proscribes such discrimination. Section II.B of his opinion makes abundantly clear that he thinks that *if* Congress actually banned such discrimination, the states would have to comply under the Supremacy Clause, unless the commandeering objection were to prevail (more on that caveat below).

The reason that doesn't give "free rein" to state courts is because Congress can amend its laws; if you're right that Congress obviously doesn't want anti-federal discrimination, it could simply pass one law tomorrow saying so that covered *all* federal causes of action. Like all questions of implied conflict preemption, the fight here is *why* we should beliee that that's what Congress actually intends. And neither Stevens nor you has given persuasive evidence that Congress *always* believes that it is vital that state cts hear federal claims in the limited set of cases where the deft doesn't exercise its entitlement to remove pursuant to 1441 -- evidence that is unlikely to be forthcoming given the dim view many Congressmen hold of state courts (reflected by the existence of 1441 itself).

Moreover, even if you had such extratextual evidence, Thomas's point is simply that Congress should say so in codified law. It's no different than his extraordinarily cramped view of implied conflict preemption expressed in Wyeth -- that too leaves states free to do all sorts of things that some people might view as burdening federal interests, and imposes the obligation on Congress to specify when such burdens should be preempted by federal law. Thomas just isn't prepared to make judgment calls on such issues, and instead wants to force Congress to speak clearly as to whether state law is preempted. I don't understand why this -- of all areas -- is the place to be upset about Thomas's cramped view of implied conflict preemption. Unlike Wyeth -- which lets state juries create a patchwork of regulation on interstate businesses -- all this would mean is that federal cases get resolved in federal courts.

Finally, on the commandeering point, I agree w/ you that the footnote is significant. If Thomas took the anti-commandeering position that really would give state courts "free rein." That said, I'm not particularly sold on why that's any different than state executives having "free rein" not to enforce federal law. Printz's reference to the Supremacy Clause is circular -- if it's unconstitutional for Congress to commandeer the jurisdiction of state courts, then any attempt to do so is not valid federal law for purposes of the Supremacy Clause. Nor does this render the Supremacy Clause a dead letter -- it still serves the vital function of requiring state courts to apply federal law that applies in state cases (most notably, the Bill of Rights in criminal prosecutions). That said, I don't purport to take a definitive position on the commandeering question for state courts. I'd have to read the sources in fn. 8 (and others) before making up my mind. My only point is that the Supremacy Clause can't possibly answer the question.

Posted by: Hash | May 29, 2009 4:01:48 PM

Hash -- I wasn't trying to mischaracterize Justice Thomas's dissent; rather, I was trying to assess its unspoken implications. I think he says quite a bit more than that 1983 is facially silent about whether it can be enforced in state courts, especially the passages I quoted in the original post. And as you note, the Printz footnote is rather significant, given that Scalia himself in Printz emphasized how state courts are an exception to anticommandeering rules, given the plain language of the Supremacy Clause.

Rather, I take Thomas's quarrel to be with the entire body of "anti-discrimination" Supremacy Clause jurisprudence. It just isn't true, in my view, that Congress leaves states free to discriminate against the causes of action it creates simply by not barring them from doing so. Otherwise, state courts would in fact be free to discriminate against any federal cause of action that isn't express as to its enforceability in state court -- and that's virtually all of them. If that's not free rein, what is?

Posted by: Steve Vladeck | May 29, 2009 3:05:48 PM

I think this is a seriously inaccurate characterization of Justice Thomas's opinion. Justice Thomas does not say, as you claim, that there is "no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts." Nor does he say, as you claim, that "states are free to discriminate against federal question lawsuits under almost any circumstance."

Rather, his point is more modest. Nothing in the text of 1983 *mandates* that 1983 suits be heard in the courts of unconsenting states. Consequently, because 1983 is facially silent on the question, he would interpret the statute as having left it up to the states whether or not to hear 1983 cases. And because Congress left that question open in 1983, that necessarily means the State court isn't violating the Supremacy Clause, since federal law has nothing to say on the question.

In short, Justice Thomas simply refuses to read 1983 as *impliedly preempting* state jurisdictional rules that would disclaim jurisdiction over 1983 suits. If, however, Congress made express its desire that state cts were to hear these cases, then Thomas is quite clear that his argument in Part II would not apply. See p. 24 (though he does drop a fn. saying that there'd be an open, and "difficult," commandeering question under Printz.) Thus, contrary to your claim, Thomas is simply arguing that states are free to discriminate *when Congress has left them free to discriminate.*

Now, you might disagree with Thomas's view of implied preemption and unexpressed Congressional intent, but that's quite a different matter than saying Thomas thinks state courts have free rein to discriminate as they please.

Posted by: Hash | May 29, 2009 1:53:27 PM

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