« Should Apprendi Apply to Substantive Reasonableness Review? | Main | Ebola: A Problem of Poverty rather than Health »

Monday, October 27, 2014

State Courts Choosing to Follow Federal Precedents

Following up on his appearance on the Oral Argument podcast, Michael Dorf has a fascinating post up this morning at "Dorf on Law" in which he tackles the intriguing question of whether state courts may choose to "gratuitously" be bound by federal precedents that don't actually bind them under the Supremacy Clause. Michael argues that the answer is no:

One might think that, just as a state high court can voluntarily decide whether to construe its constitutional provisions in "lockstep" with the parallel provisions of the federal Constitution or to give greater protection to rights as a matter of state law, so too here, a state can decide to be "more bound" by federal law than is strictly required. But the analogy doesn't hold. A state high court that gratuitously decides to accept (or to go beyond) federal definitions of its state law terms is making a decision about how to understand state law. By contrast, a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control.

Respectfully, I disagree--both as a matter of doctrine and principle. Below the fold, I take up both grounds of disagreement:

I.  Doctrine

Doctrinally, the closest (and most recent) case on point is the Supreme Court's 2008 decision in Danforth v. Minnesota. Danforth was a case about the ability of prisoners to retroactively invoke "new" Supreme Court decisions that were handed down after their direct criminal appeal became final. The Supreme Court has erected a very high bar to when such "new" rules can be retroactively enforced via federal habeas petitions, and the Court had already held that its 2004 Confrontation Clause ruling in Crawford v. Washington was not retroactively enforceable in federal habeas petitions. 

But Danforth held that state courts are free, as a matter of state law, to give retroactive effect to new Supreme Court decisions like Crawford in state collateral post-conviction proceedings. In other words, if one accepts that the Supreme Court's interpretation of a constitutional provision is itself federal law, Danforth holds that state courts can choose whether or not federal law (Crawford) that wouldn't be binding in a federal post-conviction proceeding can nevertheless be binding in a state post-conviction proceeding. (That this is what Danforth necessarily allows is made quite clear by Chief Justice Roberts' rather sharp dissent.)

At least as a matter of current doctrine, then, there's at least some support for the notion that state courts can, indeed, choose whether and under what circumstances they will be bound by federal precedents that wouldn't otherwise be binding. Michael may well believe that Danforth is wrongly decided. But if it isn't, it seems difficult to square with his conclusion that " a state court that gratuitously accepts lower federal court rulings on the meaning of federal law is deciding how to determine federal law. As to that process, federal principles control."

II.  Policy

Separate from Danforth, I have to say that this result makes sense to me. If state courts are the authoritative expositors of state law, and they choose, as a matter of state procedural law, to be bound by a federal precedent that isn't otherwise binding as a matter of federal law, I don't see how that raises any kind of federal constitutional concern under the Supremacy Clause.

It may be silly (or wrong) as a matter of state law, but it seems to me that that's up to the relevant state (whether through its legislature or court of last resort) to decide. Of course, by dint of the structure of appellate jurisdiction, state courts are usually bound as a matter of federal law by the Supreme Court's interpretations of federal law--but Danforth is a rare example of a case in which that's not true. And state courts are never bound as a matter of federal law by the lower federal courts' interpretations of federal law. And so it should follow that the same logic applies to decisions of lower federal courts interpreting federal laws--that a state can choose to be bound by that decision as a matter of state law, and that nothing in federal law (including the Constitution) either requires them to so choose, or prevents them from doing so.

Posted by Steve Vladeck on October 27, 2014 at 09:41 AM in Constitutional thoughts, Steve Vladeck | Permalink

Comments

In State v. Sarmiento, 397 So. 2d 643 (Fla. 1981), the Florida Supreme Court interpreted the Florida Constitution more liberally than the U.S. Supreme Court had interpreted the federal Fourth Amendment. Florida voters then amended the Florida Constitution to provide that state courts must follow the U.S. Supreme Court’s interpretation of the federal Fourth Amendment (voters also amended the Florida Constitution to require state judges to follow U.S. Supreme Court federal Eighth Amendment precedent). Jason Mazzone has a nice discussion if this in his article "When the Supreme Court is not Supreme," 104 NW. U. L. REV. 979 (2010).

It seems to me that there are two wrinkles. One is whether state courts--as opposed to state legislators or state constitutions--can require adherence to federal precedents. I confess that I don't see much federal-law distinction between state judicial and nonjudicial lawmakers on this score, though there may be meaningful state-law distinctions. Another is whether ANY state lawmaker can decree state courts to be bound by otherwise nonbinding federal precedents. Here, I think the federal constitutional implications are weak, but perhaps they do exist. Federalism principles contemplate the continued existence and independence of states in a way that prevents even the states from voluntarily becoming vassals (one reason why, for example, states cannot waive the anticommandeering prohibition). Perhaps an argument could be made (though it seems very weak to me) that state-court dependence upon federal precedent unconstitutionally disrupts this federalism balance.

Posted by: Scott Dodson | Oct 28, 2014 12:03:29 PM

Post a comment