Supreme Court Monitoring of State Courts in the 21st Century

Abstract

A relatively neglected aspect of the many strands of judicial federalism is the review by the United States Supreme Court of decisions on federal law by state courts. The Supreme Court has undertaken such review almost from its inception, but this article considers two apparent shocks to this review, one recent and well-known, the other one more long-standing and less the subject of comment. The first is Bush v. Gore (2000), where the Supreme Court reversed a decision of the Florida Supreme Court, thus resolving the post-presidential election controversy in favor of Texas Governor George W. Bush. The Florida court's decision, ordering manual recounts of votes, was ostensibly based on state law, yet the Supreme Court majority (or at least three Justices thereof) disagreed with the state court's interpretation of its own law, in order to reach federal legal issues. Much can, will, and should be said about Bush v. Gore, but the question is whether the majority's aggressive review portends a new role for the Court for other state court cases. The second, less noticeable but potentially as profound a shock to the understood system of Supreme Court review is the Court's decreasing caseload. Through most of the 20th century the Court was deciding well over 100 cases per Term, and as late as the mid-1980s the number was almost 150. But starting in 1990 the number began to sharply spiral down, and for much of the 1990s the Court was only deciding 70 to 80 cases per Term. The likelihood of review of any given decision, not high to begin with, is even lower today. What might account for the Court's shrunken caseload, and what are its implications for state court decision-making? This paper addresses some of these questions. Part II considers the effect of Supreme Court review on the development of state constitutional law. After briefly surveying the history of Court review of state court decisions, and of the New Judicial Federalism, Part II addresses the impact of two controversial Supreme Court decisions: Michigan v. Long (1983), in which the Court held that review of federal issues was possible, unless the state court plainly stated that it was relying on state law, and the aforementioned Bush v. Gore. Part III of the paper turns toward the Supreme Court's shrunken docket, and in particular its possible impact on the adjudication of federal issues in state courts. Finally, Part IV considers the role of state intermediate appellate courts regarding the issues raised in Parts II and III.