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On Restricting the Supreme Court’s Jurisdiction and States’ Right to Appeal to the Supreme Court

Here’s an interesting series of posts back in 2004 (including an exchange with Tim Sandefur, back when he was still civil with me):

Great Idear

Posted by Stephan Kinsella on September 16, 2004 11:24 AM

Courts may be stripped on pledge — discusses the attempt by some House Republicans to try to prevent the Supremes from overturning legislation related to the pledge. The idea is to simply strip the Court of jurisdiction over certain matters, using a neglected provision in the Constitution: Article III, Section II, which provides:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned , the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

This is, IMO, a very good idea. Strip away. (No offense, libertarian centralists [2, last 4 Gene Healy articles here].)Note: As explained here:

Article III, Section 2, clause 2’s reference to cases in which `a State shall be Party’ does not include suits by citizens against states. See United States v. Texas, 143 U.S. 621, 643-44 (1892) (`The words in the constitution, `in all cases . . . in which a state shall be party, the supreme court shall have original jurisdiction’ . . . do not refer to suits brought against a state by its own citizens or by citizens of other states, or by citizens or subjects of foreign states, even where such suits arise under the constitution, laws, and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against states.’) (emphasis added). The Eleventh Amendment provides that `The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.’ U.S. Const. Amend. XI.

This is why a suit by a citizen against his own State based on a claim of violation of federal constitutional rights would not be a case where a “State is Party” and original jurisdiction. So, e.g., a lawsuit challenging the pledge, or an abortion law, or a state’s hetero-only marriage laws, even if the state is being sued, is a case of appellate, and not original, jurisdiction. It’s not a case where a “State [is] a Party” because that language refers to paragraph 1 situations, which do not include a citizen suing his own State. Therefore jurisdiction for a citizen suing his own State can only be based on a claim “arising under” federal law or the Constitution, and thus a case of appellate jurisdiction.

For further discussion see these annotations.

See also this discussion, which notes that original jurisdiction is very narrow, and . So anything else is appellate and can be regulated.

According to the Findlaw summary/annotations, after the Eleventh Amendment, “those cases to which States were parties were now limited to States as party plaintiffs, to two or more States disputing, or to United States suits against States”.

Thus, if a citizen sues his State on some kind of Constitutional grounds, where the Supreme Court might have a chance to innovate and strike down the state law based on invented rights, the suit can’t be one of original jurisdiction since the State is not a plaintiff, nor a 2-State dispute, or a US vs. State suit; therefore, the Court has jurisdiction based on the suit arising under federal law or the Constitution, which is appellate.

On Reducing the Supreme Court’s Jurisdiction

Posted by Stephan Kinsella on September 17, 2004 12:06 AM

Following up on my previous post endorsing the idea of Congress using Article III, Section 2 of the Constitution to limit the Supreme Court’s jurisdiction over certain issues. A curious retort has been posted elsewhere.The writer accused me of “puffy analysis” and being a “dainty liar” and of making an “exhaustive attempt[] to divert from the usually damned clear language of the US constitution.” And I commited the apparently unacceptable action of finding and quoting pertinent Supreme Court cases on point.

I think the author is confused when he assume my, and Supreme Court jurisprudence, assumes “that the 11th amendment refers to citizens suing their own states.” We are not assuming that at all.

Let me try again. First, the Constitution, Art. III, Sec. 1, specifies that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Accordingly, Congress did establish the inferior (federal appellate and trial) courts. But the Constitution itself creates the Supreme Court.

Art. III, Sec. 2 lists what its judicial Powers are–i.e., what types of cases it has jurisdiction over. This is the first paragraph.

The second paragraph says that the Supreme Court has “original jurisdiction” in some of these cases. In the other cases, the Supreme Court has appellate jurisdiction only; Congress can restrict this jurisdiction.

So in theory, Congress could abolish (or never have formed) any of the federal appellate or district (inferior) courts, and could remove from the Supreme Court all appellate jurisdiction and leave it only with original jurisdiction.

Now the question here is, what if Congress tries to remove the ability of the federal courts to hear cases concerning, say, the pledge or abortion laws or the Ten Commandments etc. Now in many of these cases, a citizen will sue his State based on infringement of his Constitutional rights. For example, a woman might sue a state if it outlaws or regulates abortion, on the grounds that it violates her Constitutional rights. Or a gay Texan might sue Texas in federal court to have its anti-sodomy law overturned as unconstitutional.

If these cases are heard under appellate jurisdiction, then Congress could simply remove the Court’s jurisdiction. That would prevent the Court from overturning, say, Texas’ anti-sodomy law.

So do such cases fall under original or appellate jurisdiction?

Well, para. 2 says: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…”

At first glance, the types of cases I noted above, where a citizen sues his own state, would seem to fall under original jurisdiction, since a State is a Party.

But this analysis is mistaken. Para. 2 is simply dividing the cases where there is jurisdiction–as listed in paragraph 1–into either original, or appellate. It is not creating or granting more jurisdiction. And in paragraph 1, no jurisdiction is granted for suits of a citizen against his own state. It does grant jurisdiction for cases “between a State and Citizens of another State”–but that was later overturned by the 11th Amendment.

In other words, the Supreme Court is simply not granted power to hear cases where a citizen sues his own state (or even another state, after the 11th Amendment).

Therefore, since there is no jurisdiction at all over these cases, it cannot be original jurisdiction. When the second para says there is original jurisdiction in cases “in which a State shall be Party”, that would have to refer to the Cases listed in paragraph 1, where a State would be a party, such as one state suing another State (or, before the 11th Amendment, to a case of a citizen suing another State).

But note that para. 1 also says that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…” This is how a citizen can sue his own state for violation of his Constitutional rights, since the claim arises under the Constitution. But this is not one of the types of Cases for which there is original jurisdiction; therefore, it is a case of appellate jurisdiction.

Now, this was my own reasoning, drawing on my hazy recollection of this topic from law school.

And, it turned out, after I had come to this conclusion on my own, that the Supreme Court has said the same thing, in several cases. In Texas v. White, the Court reasoned:

The words in the constitution, ‘in all cases … in which a state shall be party, the supreme court shall have original jurisdiction,’ necessarily refer to all cases mentioned in the preceding clause in which a state may be made of right a party defendant, or in which a state may of right be a party plaintiff. It is admitted that these words do not refer to suits brought against a state by its own citizens or by citizens of other srtates, or by citizens or subjects of foreign states, even where such suits arise under the constitution, laws, and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against states.

Now I know we don’t always agree with the Court, but they do sometimes have a decent analysis of the Constitution. This is one of those cases.

Further, since this is a case where this interpretation would promote liberty, by restraining the Court’s ability to invent new, unlibertarian, positive rights and/or to further erode federalism, I fail to see why libertarians would be aghast by it.

More on Restricting the Supreme Court’s Jurisdiction

Posted by Stephan Kinsella on September 17, 2004 11:50 AM

Re these posts–Jim Sheehan writes:

Your argument is well-supported by J. Kennedy in Alden v Maine, a recent case. Kennedy makes clear that sovereign immunity derives from the Constitution, and the immunity that the states retained upon ratification.


Stephan, correct me if I am wrong, but Alden appears to go even farther than you do, does it not? It looks to me like the Constitution never gave the SC appellate OR original jurisdiction in suits by individuals against their own state.I believe the doctrine of ex parte Young (1908) has been used to abrogate state sovereignty by authorizing suits against state officials. I question whether Young is valid, but that is a separate question.

This all sounds about right. But I think Alden and sovereign immunity have to do with private suits against the state for damages. E.g., for breach of contract, that kind of thing. States have to consent to such suits. There are some exceptions, e.g. you can sue government officials directly. But states can also be directly sued by individuals, even if they don’t consent, presumably in the Lawrence v. Texas case. This may be because of the Fourteenth Amendment, or maybe because the case alleges a violation of federal law by the State. I am not sure.

The Alden case intimates this, when it says:

Sovereign immunity, moreover, does not bar all judicial review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the constitutional principle of state sovereign immunity. […] We have held also that in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its §5 enforcement power.

If this is true–if suits against states in federal courts for violation of the Constitution are permissible only because of the horrible 14th Amendment–this is yet another reason by it’s a good idea to limit this appellate jurisdiction.

If any bright law student of con law lawyer knows more about this, email daddy at stephan -at- kinsellalaw dot com.

Re: On Reducing the Supreme Court’s Jurisdiction

Posted by Stephan Kinsella on September 18, 2004 03:21 PM

3L Clay Rossi sent me this interesting comment re recent posts:

When I was a first year [law school] we did cover some of the ramifications of withdrawing selected areas of jurisdiction from the federal courts and/or Supreme Court. If everyone still abided by the rule of law, there would be no questiont about Congress’ ability to do it.

However, the statists will not go down without a fight.

The former dean of my law school ( a neocon con law professor of some
repute) told me that the counter offensive against limiting federal jurisdiction has already been planned — i.e. the Supreme Court will strike down the any act of Congress which seeks to limit jurisdiction as unconstitutional on the grounds that the limitation on the jurisdiction is a violation of the due process rights of the people who would have be able to seek redress in the federal court system before the restriction. So in other words, the Supremes will hold that their own concept of what the words “due process” mean as higher and greater than the plain meaning the enumerated powers of Congress found in the Constitution.

That sound like par for the course.

Regarding recent posts, Rossi also has these comments on the substantive issue at hand:

The way I understand the agument is a follows. The sovereign right of immunity from suit is a basic principle which predates the Constitution. The language of Art. III sec 2 is said to have been drafted with the presumption that jurisdiction where the state was a party against the claim of a person was only found where the state had consented to the suit. The 11th Amendment clarified this position, however, the sovereign right of immunity of the state against one of its own citizens is still implicit, not explicit in the 11th amendment.

The 14th Amend., through the ratification process by the states, is said to act as an explicit waiver of a state’s sovereign immunity against suit by its own citizens. However, this waiver is only triggered by 14th Amend. sec 5’s appropriate legislation clause. It may then be deduced that if the waiver may only be triggered in legislation where Congress manifests its intention to trigger the waiver “clearly and unambigiously” in the legislation, then the waiver is limited to those things which Congress may rightfully legislate upon. Congress may rightfully legislate the parameters of federal appellate jurisdiction, but Congress is not given the power to legislate the areas of original jurisdiciton. Since the Congress has no ability to legislate on original jurisdiction, the 14 sec 5 waiver trigger is only applied to appellate jurisdiction matters.

This is interesting and kind of persuasive. Original jursidiction by definition is that which the Supreme Court has automatically; not only if Congress doesn’t limit it. Appellate jurisdiction, by contrast, is that which Congress can limit. Since the 14th Amendment specically allows Congress to provide, or not provide, jurisdiction to hear certain cases under the 14th, it’s appellate by definition. In any event it can clearly be restricted, under the 14th Amendment even if not under Art. III.

Further–see this definition. Let’s take the case where, say, Lawrence sues Texas. He sues in state courts. Then it’s appealed to the Supreme Court. This alone seems show that it’s not original jurisdiction. It’s appealed from state court. So it has to be appellate jursidction.

Sandefur’s post:

Some thoughts on jurisdiction stripping

Posted by Timothy Sandefur on September 21, 2004 at 08:08 AM | Permalink

Stephan Kinsella had a very interesting question that he emailed me, and I urged him to blog it. The question is this: we often hear proposals to strip the Supreme Court of jurisdiction for certain cases—say, cases involving references to God in the pledge of allegiance, or whatever. (As a side note—I’ve always rather liked these proposals. To me, jurisdiction stripping is the last refuge of people who have no real argument. It’s the legal equivalent of taking your marbles and going home.)

But, notes Kinsella, Article III section 2 paragraph 2 of the Constitution gives the Supreme Court original jurisdiction over any case “in which a State shall be a party.” If Congress can’t mess with Constitutional grants of jurisdiction, which seems logical, then Congress might deprive the Supreme Court of appellate jurisdiction or certiorari in cases where the state is a party, but all that would mean is that Mr. Lawrence would walk over to the Supreme Court and file a complaint there, instead of petitioning the Supreme Court after going through the Texas court system. Kinsella asked if anyone’s ever thought of this before. I’m not aware of any cases.

I did find Wisconsin v. Pelican Insurance Co., 127 U. S. 265 (1888), in which the State of Wisconsin filed a complaint in the Federal Supreme Court, seeking enforcement of a judgment rendered in a Wisconsin court, against a Louisiana corporation. Jurisdiction was asserted on the ground that it was a case in which a state was a party. The Supreme Court accepted that jurisdiction—and did so again in Massachusetts v. Mellon, 262 U.S. 447 (1923), which discussed the Pelican case. But these cases then stated that Art III § 3 ¶ 3 does “not…confer jurisdiction upon the court merely because a state is a party, but only where it is a party to a proceeding of judicial cognizance. Proceedings not of a justiciable character are outside the contemplation of the constitutional grant.” Mellon, 262 U.S. at 481. In Pelican, the Court said that it did not have authority to execute the penal statutes of another sovereign, so that it could not enforce the Wisconsin state court judgment, which was rendered under a penal statute.

So what happens when Mr. Lawrence goes to Washington and files his complaint against Texas? The Supreme Court might say that the Eleventh Amendment alters Art III § 3 ¶ 3, by constitutionalizing principles of sovereign immunity. This is a difficult argument to assess since, as we all know, the Eleventh Amendment did not constitutionalize principles of sovereign immunity, despite the Supreme Court’s recent repeated insistence to the contrary. The Eleventh Amendment makes no reference to sovereign immunity, but merely removes a single element of the Supreme Court’s jurisdiction (namely, suits by citizens of one state against another state). Still, the cases have interpreted that Amendment very broadly—finding immunity in its emanations and penumbras. So would those emanations and penumbras limit Mr. Lawrence from going to D.C. as I’ve proposed? I’m afraid this is too speculative for me to guess.

(Incidentally, Kinsella writes “Since the 14th Amendment speci[fi]cally allows Congress to provide, or not provide, jurisdiction to hear certain cases under the 14th [amendment], it’s appellate by definition…. Let’s take the case where, say, Lawrence sues Texas. He sues in state courts. Then it’s appealed to the Supreme Court. This…[is] appellate jursid[i]ction.” True, but we’re hypothesizing that some loony Congress has removed the Supreme Court’s authority to hear appeals or cert. from state courts. So instead Lawrence files his complaint in Federal Court. In that case, personal jurisdiction against the state would be granted by Article III, and subject matter jurisdiction would be granted by the Fourteenth Amendment. That should be enough, unless personal jurisdiction must be based on some act or event which is related to the cause of action—something which I believe the Supreme Court has rejected.)

The Appeal of States

Posted by Stephan Kinsella on July 9, 2005 02:22 PM

In replying to a recent email I was reminded of some notes I made previously on an “extreme federalist” theory of mine that I came up with in law school. The outline is below, along with elaboration in the email reply.

The Appeal of StatesUnder the “independent adequate state grounds” doctrine,

If a state court decision rests on “independent and adequate state grounds,” then regardless of how the U. S. Supreme Court resolved the federal issues presented in the case, the result of the case would remain unchanged. The Court has said that were it to accept jurisdiction in such a case, it would be rendering an advisory opinion in violation of the Constitution’s command that the federal judicial power is limited to real cases and controversies.

So if, say, in Connecticut the state high court were to have ruled that the New London taking was unconstitutional under the state takings clause and the federal takings clause, then even if the state court gave the wrong intepretation to the federal clause, there would be no reason for the feds to hear it–even if they overturned the state court ruling on the federal takings provision, the state court ruling against the taking would still be the same since it has independent and adequate state grounds to make this decision.

It has always bugged me that a state agency can appeal to the federal courts a state court’s interpretation of the federal constitution that is broader than the federal courts’ interpretation. It does not seem proper to me that a state is able to review a decision of its own state supreme court, in federal court–even if there is a federal question. Let’s say the state court throws out the conviction on the grounds that the state law violates the federal First Amendment.

Yet the U.S. Supreme Court does not itself interpret the protection of the First Amendment as broadly. Today, the prosecutor can appeal to the Supreme Court.

I am aware that prior to about 1913 (I think) that the Court did not typically hear such appeals, because there was no federal right denied. But this was not on jurisdictional grounds. In my view, the court has no jurisdiction to overturn a state supreme court holding which broadens a federal constitutional provision. The main reason for my view is that the Constitution does not prevent states from protecting individual rights to a higher degree than the minimum level set by the Federal Constitution.

Indeed this is why the adequate and independent state grounds doctrine does not permit appeal if the state broadened the individual right in some other way, e.g. by its own constitutional provisions.

All the commentators today (except, as far as I can tell, Donald Bell) seem to question whether or the indep. & adequate state grounds is justifiable in restricting federal jurisdiction. But they all seem to take it for granted that, IF there is a state supreme court that rules in favor of a state individual citizen on federal constitutional (or legal) provisions, THEN there is federal question jurisdiction. It is that presumption that seems incorrect to me. I’d go so far as to say it is an unconstitutional exercise of jurisdiction for the Supreme Court to overturn a state court’s holding in this regard. That is because it simply does not violate the Constitution for a state to expand individual rights–no matter how the state does it.

For example, if a state enacts a mere statute or even a state constittuional provision protecting freedom of speech very broadly, this will not be reviewed by the Supreme Court. Nor, if the state prosecutor refuses to prosecute someone engaged in speech activity. Nor, if a common law rule were to develop. But what if the voters (or state legislators) vote for a state constitutional amendment or law based on their belief that the First Amendment is broader than the Supreme Court says it is? Why is that not reviewable, but it is reviewable if the state supreme court does it? What if I as a juror believe the first amendment is broader than the Supreme Ct says it is, and thus I refuse to convict a defendant. My grounds for refusal cannot be reviewed by the supreme court. Nor if I vote in favor of a state measure based on my interpretation of the First Amendment (which is at variance with hte feds).

I just do not see why it is the Feds business how a state decides to make policy, or how it expands individual rights protections. IF it does it by common law, by prosecutorial policy, by jury nullification, by state law or constitution, by referendum–all those are okay; but a court can’t do it.

Makes no sense to me. The distinction is arbitrary.

To put it starkly, a state court freeing an individual for any reason, simply does not violate the federal constitution because nothing in the federal constitution requires states to jail citizens. Thus, if a decision of a court against a prosecutor cannot violate the constitution, why is it a “federal question”? Why is it reviewable and reversable by the Court? Why does it have jurisdiction at all?

Now what reminded me of this was the following question that someone emailed me:

It would be interesting to know how the U.S. S.Ct. would have ruled if the Conn. S.Ct. had upheld the trial court on the grounds that it violated Art. 1, Sec. 11 of the Conn.Const. – “The property of no person shall be taken for public use, without just compensation therefor” – and New London, rather than Kelo, had appealed on the basis that its right of eminent domain under the U.S. Const. was greater than its right of eminent domain under the Conn. Const. In Pruneyard, the U.S. S.Ct. said that states could confer more expansive rights in their constitutions than were conferred by the U.S. Const. By implication, states could not confer a less expansive right than that conferred by the U.S. Const. (In Pruneyard both parties were private.) New London might argue that it had greater rights under the U.S. Const. than under the Conn. Const. That is essentially the position of the U.S. SCt in Pruneyard. That decision was logically inconsistent because it was, in part, a case involving different rights in conflict – propery rights v. free speech rights.

My reply follows:

I’m not sure I follow the twists and turns of your question. I assume you are saying the trial court ruled against the taking but the Conn S.Ct. overruled that, in essence saying the taking was consistent with both the Conn and Federal takings provisions.

If that is what you mean–then you are asking, if the Conn S Ct had overturned the takign on the grounds that it violated the STATE provision, then could New London have appealed it. I think the answer is a clear no. It is clearly permissible for states to give greater protections than teh fed constitution. Now I suppose that since the 2 provisions had diferent wordings, New London could try to argue that a broad interpretation by ConnS.Ct of the Connecticut taking provision is tantamount to an identical construction of the federal takings provision, and thus the constructions was subject to federal review. But I think that would not work.

If the Conn S. Ct had struck down the New London taking based on BOTH the Connecticut and US takings provisions, I think here, again, the Court probably would not hear it. Why? Because there is an equal and independent STATE ground to uphold the state ruling. It would not matter if the state court gave too broad a construction to the federal provision, because even if the S.Ct overturned this, the state decision would not change since it would still hav overturned the state law on state constitutional grounds.

Now: if the Conn S. Ct had overturned the conn taking based solely on its interpretation of the federal takings provision, then the law is that the S.Ct can review it, since it has jurisdiction over “federal questions.”

Coincidentally, I have written before (informally–no full article yet, but I have contemplated one)–on this very last topic. In my strict, or “extreme,” federalist view, in this case the S.Ct should have NO jurisdiction. The reason is because the Constitution at most places LIMITS on what the states can do. As is recognized, this is exactly why the states are able to have GREATER protection of rights.

But my view is that the state can provide greater protection in a number of ways. It could have its own constitutional provision, that is tighter than the feds’. Or, it could have its own courts construe its own constitutioanl provision, that is worded identially to the feds’, in a braoder fasion. Or, it could have its police simply refuse to enforce certain laws. Or, its juries might regularly overturn certain convitions. Or, the prosecutors might not act on it. Or, there might be a statute protecting the right. Or, a common law rule.

What busienss is it of the feds how the states give greater protection of rights?

So it seems to me another way is for hte state to give a broader construction to the fed’s own provisions. NOtice this is one branch of gov’t striking down the law of another branch of government for SOME reason. From the point of view of the feds, and the victim, the state is a black box that is acting as if the victim has greater rights than the feds recognize. This is permissible–so what does it matter WHY? Why is it even the feds’ buseinss?

In short: I believe state agencies should NEVER be able to appeal an action of their OWN GOVERNMENT to the feds–even if it is based on the calim that the sttae government (court, whatever) gave “too broad” a construction to the federal provision.

Consider this: suppose a state prosecutor BELIEVES the First Amendment gives greater protection to, say, commercial speech, than the Supreme Court has interpreted it. So he refuses to prosecute based on his own belief in the First Amendment’s meaning. Surely the Supreme court couldn’t review this. Why then, if a court does something similar? Or what if the legislators in the state enact a law to grant braod protection to commercial free speech *because the legislators believe* the First Amendment really means to do this and the Supremes have misconstrued it. Would their legislation itself be challengable just becaus it was based on an opinion of the legislators as to the meaning of the federal Constitution?

The point is: it violates the Constitution for a state to do something it prohibits. It does not violate th Constitution for the state to grant more rights than the Constitution grants. So no matter how this is done, why shoudl the fds have jurisdiction? THey should hear a case where the state is a party only to ensure the state is not violating the constitution. It does NOT violat the constitution for the state to have a certain view of the Constitution and to act on it.

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