What authority does the Supreme Court have over cases affecting ambassadors public ministers and consuls and those in which a state shall be Party?

Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all 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.

Annotations

The Theory of Plenary Congressional Control

Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to “exceptions and regulations” prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to “curb” the courts and more frequently to proposed but unsuccessful curbs. Supreme Court holdings establish clearly the breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.

—In Wiscart v. D’Auchy, the issue was whether the statutory authorization for the Supreme Court to review on writ of error circuit court decisions in “civil actions” gave it power to review admiralty cases. A majority of the Court decided that admiralty cases were “civil actions” and thus review-able; in the course of decision, it was said that “[i]f Congress had provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.” Much the same thought was soon to be expressed by Chief Justice Marshall, although he seems to have felt that in the absence of congressional authorization, the Court’s appellate jurisdiction would have been measured by the constitutional grant. “Had the judicial act created the supreme court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. The legislature would have exercised the power it possessed of creating a supreme court, as ordained by the constitution; and in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those powers undiminished.”

“The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject.” Later Justices viewed the matter differently from Marshall. “By the constitution of the United States,” it was said in one opinion, “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” In order for a case to come within its appellate jurisdiction, the Court has said, “two things must concur: the Constitution must give the capacity to take it, and an act of Congress must supply the requisite authority.” Moreover, “it is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.”

This congressional power, conferred by the language of Article III, § 2, cl. 2, which provides that all jurisdiction not original is to be appellate, “with such Exceptions, and under such Regulations as the Congress shall make,” has been utilized to forestall a decision which the congressional majority assumed would be adverse to its course of action. In Ex parte McCardle, the Court accepted review on certiorari of a denial of a petition for a writ of habeas corpus by the circuit court; the petition was by a civilian convicted by a military commission of acts obstructing Reconstruction. Anticipating that the Court might void, or at least undermine, congressional reconstruction of the Confederate States, Congress enacted over the President’s veto a provision repealing the act which authorized the appeal McCardle had taken. Although the Court had already heard argument on the merits, it then dismissed for want of jurisdiction. “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.”

“What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Although McCardle grew out of the stresses of Reconstruction, the principle it applied has been applied in later cases.

—The Framers, as we have seen, divided with regard to the necessity of courts inferior to the Supreme Court, simply authorized Congress to create such courts, in which, then, judicial power “shall be vested” and to which nine classes of cases and controversies “shall extend.” While Justice Story deemed it imperative of Congress to create inferior federal courts and, when they had been created, to vest them with all the jurisdiction they were capable of receiving, the First Congress acted upon a wholly different theory. Inferior courts were created, but jurisdiction generally over cases involving the Constitution, laws, and treaties of the United States was not given them, diversity jurisdiction was limited by a minimal jurisdictional amount requirement and by a prohibition on creation of diversity through assignments, equity jurisdiction was limited to those cases where a “plain, adequate, and complete remedy” could not be had at law. This care for detail in conferring jurisdiction upon the inferior federal courts bespoke a conviction by Members of Congress that it was within their power to confer or to withhold jurisdiction at their discretion. The cases have generally sustained this view.

Thus, in Turner v. Bank of North America, the issue was the jurisdiction of the federal courts in a suit to recover on a promissory note between two citizens of the same state but in which the note had been assigned to a citizen of a second state so that suit could be brought in federal court under its diversity jurisdiction, a course of action prohibited by § 11 of the Judiciary Act of 1789. Counsel for the bank argued that the grant of judicial power by the Constitution was a direct grant of jurisdiction, provoking from Chief Justice Ellsworth a considered doubt and from Justice Chase a firm rejection. “The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the constitution: but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the constitution might warrant.” Applying § 11, the Court held that the circuit court had lacked jurisdiction.

Chief Justice Marshall himself soon made similar assertions, and the early decisions of the Court continued to be sprinkled with assumptions that the power of Congress to create inferior federal courts necessarily implied “the power to limit jurisdiction of those Courts to particular objects.” In Cary v. Curtis, a statute making final the decision of the Secretary of the Treasury in certain tax disputes was challenged as an unconstitutional deprivation of the judicial power of the courts. The Court decided otherwise. “[T]he judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court), dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.” Five years later, the validity of the assignee clause of the Judiciary Act of 1789 was placed in issue in Sheldon v. Sill, in which diversity of citizenship had been created by assignment of a negotiable instrument. It was argued that, because the right of a citizen of any state to sue citizens of another ﬂowed directly from Article III, Congress could not restrict that right. Unanimously, the Court rejected this contention and held that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies in Article III. The case and the principle have been cited and reaffirmed numerous times, including in a case under the Voting Rights Act of 1965.

—The Judiciary Act of 1789 contained numerous provisions relating to the times and places for holding court, even of the Supreme Court, to times of adjournment, appointment of officers, issuance of writs, citations for contempt, and many other matters which it might be supposed courts had some authority of their own to regulate. The power to enjoin governmental and private action has frequently been curbed by Congress, especially as the action has involved the power of taxation at either the federal or state level. Though the courts have variously interpreted these restrictions, they have not denied the power to impose them.

Reacting to judicial abuse of injunctions in labor disputes, Congress in 1932 enacted the Norris-La Guardia Act which forbade the issuance of injunctions in labor disputes except through compliance with a lengthy hearing and fact-finding process which required the district judge to determine that only through the injunctive process could irremediable harm through illegal conduct be prevented. The Court seemed to experience no difficulty in upholding the Act, and it has liberally applied it through the years.

Congress’s power to confer, withhold, and restrict jurisdiction is clearly revealed in the Emergency Price Control Act of 1942 and in the cases arising from it. Fearful that the price control program might be nullified by injunctions, Congress provided for a special court in which persons could challenge the validity of price regulations issued by the government with appeal from the Emergency Court of Appeals to the Supreme Court. The basic constitutionality of the Act was sustained in Lockerty v. Phillips. In Yakus v. United States, the Court upheld the provision of the Act which conferred exclusive jurisdiction on the special court to hear challenges to any order or regulation and foreclosed a plea of invalidity of any such regulation or order as a defense to a criminal proceeding under the Act in the regular district courts. Although Justice Rutledge protested in dissent that this provision conferred jurisdiction on district courts from which essential elements of the judicial power had been abstracted, Chief Justice Stone for the Court declared that the provision presented no novel constitutional issue.

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Annotations

Despite the breadth of the language of many of the previously cited cases, the actual holdings constitute something less than an affirmance of plenary congressional power to do anything it desires by manipulation of jurisdiction, and, indeed, the cases reﬂect certain limitations. Setting to one side various formulations that lack textual and subsequent judicial support, such as mandatory vesting of jurisdiction, inherent judicial power, and a theory, variously expressed, that the Supreme Court has “essential constitutional functions” of judicial review that Congress may not impair through jurisdictional limitations, one can nonetheless see the possibilities of restrictions on congressional power ﬂowing from such basic constitutional underpinnings as express prohibitions, separation of powers, and the nature of the judicial function. Whether because of the plethora of scholarly writing contesting the existence of unlimited congressional power or because of another reason, the Court of late has taken to noting constitutional reservations about legislative denials of jurisdiction for judicial review of constitutional issues and construing statutes so as not to deny jurisdiction.

Ex parte McCardle marks the farthest advance of congressional imposition of its will on the federal courts, and it is significant because the curb related to the availability of the writ of habeas corpus, which is marked out with special recognition by the Constitution.

But how far did McCardle actually reach? In concluding its opinion, the Court carefully observed: “Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not exempt from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised.” A year later, in Ex parte Yerger, the Court held that it did have authority under the Judiciary Act of 1789 to review on certiorari a denial by a circuit court of a petition for writ of habeas corpus on behalf of one held by the military in the South. It thus remains unclear whether the Court would have followed its language suggesting plenary congressional control if the effect had been to deny absolutely an appeal from a denial of a writ of habeas corpus.

Another Reconstruction Congress attempt to curb the judiciary failed in United States v. Klein, in which the Court voided a statute, couched in jurisdictional terms, which attempted to set aside both the effect of a presidential pardon and the judicial effectuation of such a pardon. The statute declared that no pardon was to be admissible in evidence in support of any claim against the United States in the Court of Claims for the return of confiscated property of Confederates nor, if already put in evidence in a pending case, should it be considered on behalf of the claimant by the Court of Claims or by the Supreme Court on appeal. Proof of loyalty was required to be made according to provisions of certain congressional enactments, and when judgment had already been rendered on other proof of loyalty the Supreme Court on appeal should have no further jurisdiction and should dismiss for want of jurisdiction. Moreover, it was provided that the recitation in any pardon which had been received that the claimant had taken part in the rebellion was to be taken as conclusive evidence that the claimant had been disloyal and was not entitled to regain his property.

The Court began by reaffirming that Congress controlled the existence of the inferior federal courts and the jurisdiction vested in them and the appellate jurisdiction of the Supreme Court. “But the language of this provision shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. . . . It is evident . . . that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The Court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction.”

“It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.” The statute was void for two reasons; it “infring[ed] the constitutional power of the Executive,” and it “prescrib[ed] a rule for the decision of a cause in a particular way.” While the precise import of Klein—with its broad language prohibiting Congress prescribing a “rule of decision” that unduly invades core judicial functions—has puzzled legal scholars, it appears that Klein broadly stands for the proposition that Congress may not usurp the judiciary’s power to interpret and apply the law by directing a court “how pre-existing law applies to particular circumstances” before it. Few laws, however, have been struck down for improperly prescribing a “rule of decision” that a court must follow, and the Court has, in more recent years, declined to interpret Klein as inhibiting Congress from “amend[ing] applicable law.” Instead, the Court has recognized that Congress may, without running afoul of Klein, direct courts to apply newly enacted legislation to pending civil cases, even when such an application would alter the outcome in the case. Moreover, the general permissibility under Article III of legislation affecting pending litigation extends to statutes that direct courts to apply a new legal standard even when the underlying facts of a case are undisputed, functionally leaving the court with nothing to decide. For example, in Bank Markazi v. Peterson, the Court upheld a provision of the Iran Threat Reduction and Syria Human Rights Act of 2012 that made a designated set of assets available for recovery to satisfy a discrete and finite set of default judgments, notwithstanding the fact that the change in the underlying law made the result of the pending case all but a “forgone conclusion.” In addition, the Bank Markazi Court, recognizing Congress’s authority to legislate on “one or a very small number of specific subjects,” rejected the argument that particularized congressional legislation that alters the substantive law governing a specific case—standing alone—impinges on the judicial power in violation of Article III. The Court held as such, even though the legislation in question identified a case by caption and docket number and did not apply to similar enforcement actions involving any other assets. Accordingly, Klein’s prohibition on congressionally prescribed “rule[s] of decision” appears to be limited to instances where Congress “fails to supply any new legal standard effectuating the lawmakers’ reasonable policy judgment” and instead merely compels a court to make particular findings or results under the old law.

Other restraints on congressional power over the federal courts may be gleaned from the opinion in the much-disputed Crowell v. Benson. In an 1856 case, the Court distinguished between matters of private right which from their nature were the subject of a suit at the common law, equity, or admiralty and which cannot be withdrawn from judicial cognizance, and those matters of public right which, though susceptible of judicial determination, did not require it and which might or might not be brought within judicial cognizance. What this might mean was elaborated in Crowell v. Benson, involving the finality to be accorded administrative findings of jurisdictional facts in compensation cases. In holding that an employer was entitled to a trial de novo of the constitutional jurisdictional facts of the matter of the employer-employee relationship and of the occurrence of the injury in interstate commerce, Chief Justice Hughes fused the Due Process Clause of the Fifth Amendment and Article III but emphasized that the issue ultimately was “rather a question of the appropriate maintenance of the Federal judicial power” and “whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency . . . for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend.” The answer was stated broadly. “In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function. . . . We think that the essential independence of the exercise of the judicial power of the United States in the enforcement of constitutional rights requires that the Federal court should determine such an issue upon its own record and the facts elicited before it.”

It is not at all clear that, in this respect, Crowell v. Benson remains good law. It has never been overruled, and it has been cited by several Justices approvingly, but the Court has never applied the principle to control another case.

—“[T]he Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitations that they may not be exercised in a way that violates other specific provisions of the Constitution.” The Supreme Court has had no occasion to deal with this principle in the context of Congress’s power over its jurisdiction and the jurisdiction of the inferior federal courts, but the passage of the Portal-to-Portal Act presented the lower courts such an opportunity. The Act extinguished back-pay claims growing out of several Supreme Court interpretations of the Fair Labor Standards Act; it also provided that no court should have jurisdiction to enforce any claim arising from these decisions. The United States Court of Appeals for the Second Circuit sustained the Act. The court noted that the withdrawal of jurisdiction would be ineffective if the extinguishment of the claims as a substantive matter were invalid. “We think . . . that the exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of the courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation.” The Court, however, found that the Portal-to-Portal Act “did not violate the Fifth Amendment in so far as it may have withdrawn from private individuals . . . any rights . . . which rested upon private contracts they had made. Nor is the Portal-to-Portal Act a violation of Article III of the Constitution or an encroachment upon the separate power of the judiciary.”

—There thus remains a measure of doubt that Congress’s power over the federal courts is as plenary as some of the Court’s language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the practice since 1789 and the holdings of many Court decisions. That its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution or from the cases.

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Annotations

Problems Raised by Concurrency

The Constitution established a system of government in which total power, sovereignty, was not unequivocally lodged in one level of government. In Chief Justice Marshall’s words, “our complex system [presents] the rare and difficult scheme of one general government, whose actions extend over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union. . . .” Naturally, in such a system, “contests respecting power must arise.” Contests respecting power may frequently arise in a federal system with dual structures of courts exercising concurrent jurisdiction in a number of classes of cases. Too, the possibilities of frictions grow out of the facts that one set of courts may interfere directly or indirectly with the other through injunctive and declaratory processes, through the use of habeas corpus and removal to release persons from the custody of the other set, and through the refusal by state courts to be bound by decisions of the United States Supreme Court. The relations between federal and state courts are governed in part by constitutional law, with respect, say, to state court interference with federal courts and state court refusal to comply with the judgments of federal tribunals; in part by statutes, with respect to the federal law generally enjoining federal court interference with pending state court proceedings; and in part by self-imposed rules of comity and restraint, such as the abstention doctrine, all applied to avoid unseemly conﬂicts, which, however, have at times occurred.

Subject to congressional provision to the contrary, state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in Article III, except suits between states, those to which the United States is a party, those to which a foreign state is a party, and those within the traditional admiralty jurisdiction. Even within this last category, however, state courts, though unable to prejudice the harmonious operation and uniformity of general maritime law, have concurrent jurisdiction over cases that occur within the maritime jurisdiction when such litigation assumes the form of a suit at common law. Review of state court decisions by the United States Supreme Court is intended to protect the federal interest and promote uniformity of law and decision relating to the federal interest. The first category of conﬂict surfaces here. The second broader category arises from the fact that state interests, actions, and wishes, all of which may at times be effectuated through state courts, are variously subject to restraint by federal courts. Although the possibility always existed, it became much more significant and likely when, in the wake of the Civil War, Congress bestowed general federal question jurisdiction on the federal courts, enacted a series of civil rights statutes and conferred jurisdiction on the federal courts to enforce them, and most important proposed and saw to the ratification of the three constitutional amendments, especially the Fourteenth, which made an ever-increasing number of state actions subject to federal scrutiny.

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Annotations

—The United States Supreme Court when deciding cases on review from the state courts usually remands the case to the state court when it reverses for “proceedings not inconsistent” with the Court’s opinion. This disposition leaves open the possibility that unresolved issues of state law will be decided adversely to the party prevailing in the Supreme Court or that the state court will so interpret the facts or the Court’s opinion to the detriment of the party prevailing in the Supreme Court. When it is alleged that the state court has deviated from the Supreme Court’s mandate, the party losing below may appeal again or she may presumably apply for mandamus to compel compliance. Statutorily, the Court may attempt to overcome state recalcitrance by a variety of specific forms of judgment. If, however, the state courts simply defy the mandate of the Court, difficult problems face the Court, extending to the possibility of contempt citations.

The most spectacular disobedience of federal authority arose out of the conﬂict between the Cherokees and the State of Georgia, which was seeking to remove them and seize their lands with the active support of President Jackson. In the first instance, after the Court had issued a writ of error to the Georgia Supreme Court to review the murder conviction of a Cherokee, Corn Tassel, and after the writ was served, Corn Tassel was executed on the day set for the hearing, contrary to the federal law that a writ of error superseded sentence until the appeal was decided. Two years later, Georgia again defied the Court, when, in Worcester v. Georgia, it set aside the conviction of two missionaries for residing among the Indians without a license. Despite the issuance of a special mandate to a local court to discharge the missionaries, they were not released, and the state’s governor loudly proclaimed resistance. Consequently, the two remained in jail until they agreed to abandon further efforts for their discharge by federal authority and to leave the state, whereupon the governor pardoned them.

— Although the states’ rights proponents in the Convention and in the First Congress wished to leave to the state courts the enforcement of federal law and rights rather than to create inferior federal courts, it was not long before they or their successors began to argue that state courts could not be required to adjudicate cases based on federal law. The practice in the early years was to make the jurisdiction of federal courts generally concurrent with that of state courts, and early Congresses imposed positive duties on state courts to enforce federal laws. Reaction set in out of hostility to the Embargo Acts, the Fugitive Slave Law, and other measures, and, in Prigg v. Pennsylvania, involving the Fugitive Slave Law, the Court indicated that the states could not be compelled to enforce federal law. After a long period, however, Congress resumed its former practice, which the Court sustained, and it went even further in the Federal Employers’ Liability Act by not only giving state courts concurrent jurisdiction but also by prohibiting the removal of cases begun in state courts to the federal courts.

When Connecticut courts refused to enforce an FELA claim on the ground that to do so was contrary to the public policy of the state, the Court held on the basis of the Supremacy Clause that, when Congress enacts a law and declares a national policy, that policy is as much Connecticut’s and every other state’s as it is of the collective United States. The Court’s suggestion that the act could be enforced “as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion,” leaving the impression that state practice might in some instances preclude enforcement in state courts, was given body when the Court upheld New York’s refusal to adjudicate an FELA claim that fell in a class of cases in which claims under state law would not be entertained. “[T]here is nothing in the Act of Congress that purports to force a duty upon such Courts as against an otherwise valid excuse.” However, “[a]n excuse that is inconsistent with or violates federal law is not a valid excuse: The Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.”

The fact that a state statute divests its courts of jurisdiction not only over a disfavored federal claim, but also over an identical state claim, does not ensure that the “state law will be deemed a neutral rule of judicial administration and therefore a valid excuse for refusing to entertain a federal cause of action.” “Although the absence of discrimination [in its treatment of federal and state law] is necessary to our finding a state law neutral, it is not sufficient. A jurisdictional rule cannot be used as a device to undermine federal law, no matter how evenhanded it may appear.”

In Testa v. Katt, the Court unanimously held that state courts, at least with regard to claims and cases analogous to claims and cases enforceable in those courts under state law, are required to enforce “penal” laws of the United States; the statute at issue in the case provided “that a buyer of goods at above the prescribed ceiling price may sue the seller ‘in any court of competent jurisdiction.’” Respecting Rhode Island’s claim that one sovereign cannot enforce the penal laws of another, Justice Black observed that the assumption underlying this claim ﬂew “in the face of the fact that the States of the Union constitute a nation” and the fact of the existence of the Supremacy Clause.

—It seems settled, though not without dissent, that state courts have no power to enjoin proceedings or effectuation of judgments of the federal courts, with the exception of cases in which a state court has custody of property in proceedings in rem or quasi in rem, where the state court has exclusive jurisdiction to proceed and may enjoin parties from further action in federal court.

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Annotations

Federal courts primarily interfere with state courts in three ways: by enjoining proceedings in them, by issuing writs of habeas corpus to set aside convictions obtained in them, and by adjudicating cases removed from them. With regard to all three but particularly with regard to the first, there have been developed certain rules plus a statutory limitation designed to minimize needless conﬂict.

—“[T]he notion of ‘comity,’” Justice Black asserted, is composed of “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism’. . . .” Comity is a self-imposed rule of judicial restraint whereby independent tribunals of concurrent or coordinate jurisdiction act to moderate the stresses of coexistence and to avoid collisions of authority. It is not a rule of law but “one of practice, convenience, and expediency,” which persuades but does not command.

—Perhaps the fullest expression of the concept of comity may be found in the abstention doctrine. The abstention doctrine instructs federal courts to abstain from exercising jurisdiction if applicable state law, which would be dispositive of the controversy, is unclear and a state court interpretation of the state law question might obviate the necessity of deciding a federal constitutional issue. Abstention is not proper, however, where the relevant state law is settled, or where it is clear that the state statute or action challenged is unconstitutional no matter how the state court construes state law. Federal jurisdiction is not ousted by abstention; rather it is postponed. Federal-state tensions would be ameliorated through federal-court deference to the concept that state courts are as adequate a protector of constitutional liberties as the federal courts and through the minimization of the likelihood that state programs would be thwarted by federal intercession. Federal courts would benefit because time and effort would not be expended in decision of difficult constitutional issues which might not require decision.

During the 1960s, the abstention doctrine was in disfavor with the Supreme Court, suffering rejection in numerous cases, most of them civil rights and civil liberties cases. Time-consuming delays and piecemeal resolution of important questions were cited as a too-costly consequence of the doctrine. Actions brought under the civil rights statutes seem not to have been wholly subject to the doctrine, and for awhile cases involving First Amendment expression guarantees seemed to be sheltered as well, but this is no longer the rule. Abstention developed robustly with Younger v. Harris, and its progeny.

—A complainant will ordinarily be required, as a matter of comity, to exhaust all available state legislative and administrative remedies before seeking relief in federal court. To do so may make unnecessary federal-court adjudication. The complainant will ordinarily not be required, however, to exhaust his state judicial remedies, inasmuch as it is a litigant’s choice to proceed in either state or federal courts when the alternatives exist and a question for judicial adjudication is present. But when a litigant is suing for protection of federally guaranteed civil rights, he need not exhaust any kind of state remedy.

—For reasons unknown, Congress in 1793 enacted a statute to prohibit the issuance of injunctions by federal courts to stay state court proceedings. Over time, a long list of exceptions to the statutory bar was created by judicial decision, but in Toucey v. New York Life Ins. Co., the Court in a lengthy opinion by Justice Frankfurter announced a very liberal interpretation of the anti-injunction statute so as to do away with practically all the exceptions that had been created. Congress’s response was to redraft the statute and to indicate that it was restoring the pre-Toucey interpretation. Considerable disagreement exists over the application of the statute, however, especially with regard to the exceptions it permits. The present tendency appears to be to read the law expansively and the exceptions restrictively in the interest of preventing conﬂict with state courts. Nonetheless, some exceptions exist, either expressly or implicitly in statutory language, or through Court interpretation. The Court’s general policy of application, however, seems to a considerable degree to effectuate what is now at least the major rationale of the statute, deference to state court adjudication of issues presented to them for decision.

—Both the Constitution and a contemporaneously enacted statute require federal courts to give “full faith and credit” to state court judgments, to give, that is, preclusive effect to state court judgments when those judgments would be given preclusive effect by the courts of that state. The present Court views the interpretation of “full faith and credit” in the overall context of deference to state courts running throughout this section. “Thus, res judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system.” 42 U. S. C. § 1983 is not an exception to the mandate of the res judicata statute. An exception to § 1738 “will not be recognized unless a later statute contains an express or implied partial repeal.” Thus, a claimant who pursued his employment discrimination remedies through state administrative procedures, as the federal law requires her to do (within limits), and then appealed an adverse state agency decision to state court will be precluded from bringing her federal claim to federal court, since the federal court is obligated to give the state court decision “full faith and credit.”

subject eral subject-matter jurisdiction of federal district courts does not extend to review of state court judgments. The Supreme Court, not federal district courts, has such appellate jurisdiction. The doctrine thus prevents losers in state court from obtaining district court review, but “does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.”

—When the Court in Ex parte Young held that federal courts were not precluded by the Eleventh Amendment from restraining state officers from enforcing state laws determined to be in violation of the federal Constitution, serious efforts were made in Congress to take away the authority thus asserted, but the result instead was legislation providing that suits in which an interlocutory injunction was sought against the enforcement of state statutes by state officers were to be heard by a panel of three federal judges, rather than by a single district judge, with appeal direct to the Supreme Court. The provision was designed to assuage state feeling by vesting such determinations in a court more prestigious than a single-judge district court, to assure a more authoritative determination, and to prevent the assertion of individual predilections in sensitive and emotional areas. Because, however, of the heavy burden that convening a three-judge court placed on the judiciary and that the direct appeals placed on the Supreme Court, the provisions for such courts, save in cases “when otherwise required by an Act of Congress” or in cases involving state legislative or congressional districting, were repealed by Congress in 1976.

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Annotations

One challenging the constitutionality, under the United States Constitution, of state actions, statutory or otherwise, could, of course, bring suit in state court; indeed, in the time before conferral of federal-question jurisdiction on lower federal courts plaintiffs had to bring actions in state courts, and on some occasions since, this has been done. But the usual course is to sue in federal court for either an injunction or a declaratory judgment or both. In an era in which landmark decisions of the Supreme Court and of inferior federal courts have been handed down voiding racial segregation requirements, legislative apportionment and congressional districting, abortion regulations, and many other state laws and policies, it is difficult to imagine a situation in which it might be impossible to obtain such rulings because no one required as a defendant could be sued. Yet, the adoption of the Eleventh Amendment in 1798 resulted in the immunity of the state, and the immunity of state officers if the action upon which they were being sued was state action, from suit without the state’s consent. Ex parte Young is a seminal case in American constitutional law because it created a fiction by which the validity of state statutes and other actions could be challenged by suits against state officers as individuals.

Conﬂict between federal and state courts is inevitable when the federal courts are open to persons complaining about unconstitutional or unlawful state action which could as well be brought in the state courts and perhaps is so brought by other persons, but the various rules of restraint ﬂowing from the concept of comity reduce federal interference here some considerable degree. It is rather in three fairly well defined areas that institutional conﬂict is most pronounced.

—Even where the federal anti-injunction law is inapplicable, or where the question of application is not reached, those seeking to enjoin state court proceedings must overcome substantial prudential barriers, among them the abstention doctrine and more important than that the equity doctrine that suits in equity “shall not be sustained in . . . the courts of the United States, in any case where plain, adequate and complete remedy may be had at law.” The application of this latter principle has been most pronounced in the reluctance of federal courts to interfere with a state’s good faith enforcement of its criminal law. Here, the Court has required of a litigant seeking to bar threatened state prosecution not only a showing of irreparable injury that is both great and immediate, but also an inability to defend his constitutional rights in the state proceeding. Certain types of injury, such as the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, are insufficient to be considered irreparable in this sense. Even if a state criminal statute is unconstitutional, a person charged under it usually has an adequate remedy at law by raising his constitutional defense in the state trial. The policy has never been stated as an absolute, in recognition of the fact that a federal court injunction could properly issue in exceptional and limited circumstances, such as the existence of factors making it impossible for a litigant to protect his federal constitutional rights through a defense of the state criminal charges or the bringing of multiple criminal charges.

In Dombrowski v. Pfister, the Court appeared to change the policy somewhat. The case on its face contained allegations and offers of proof that may have been sufficient alone to establish the “irreparable injury” justifying federal injunctive relief. But the formulation of standards by Justice Brennan for the majority placed great emphasis upon the fact that the state criminal statute in issue regulated expression. Any criminal prosecution under a statute regulating expression might of itself inhibit the exercise of First Amendment rights, he said, and prosecution under an overbroad statute, such as the one in this case, might critically impair exercise of those rights. The mere threat of prosecution under such an overbroad statute “may deter . . . almost as potently as the actual application of sanctions. . . .”

In such cases, courts could no longer embrace “[t]he assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights,” because either the mere threat of prosecution or the long wait between prosecution and final vindication could result in a “chilling effect upon the exercise of First Amendment rights.” The principle apparently established by the Court was two-phased: a federal court should not abstain when there is a facially unconstitutional statute infringing upon speech and application of that statute discourages protected activities, and the court should further enjoin the state proceedings when there is prosecution or threat of prosecution under an overbroad statute regulating expression if the prosecution or threat of prosecution chills the exercise of freedom of expression. These formulations were reaffirmed in Zwickler v. Koota, in which a declaratory judgment was sought with regard to a statute prohibiting anonymous election literature. The Court deemed abstention improper, and further held that adjudication for purposes of declaratory judgment is not hemmed in by considerations attendant upon injunctive relief.

The aftermath of Dombrowski and Zwickler was a considerable expansion of federal-court adjudication of constitutional attack through requests for injunctive and declaratory relief, which gradually spread out from First Amendment areas to other constitutionally protected activities. However, these developments were highly controversial and, after three arguments on the issue, the Court in a series of 1971 cases receded from its position and circumscribed the discretion of the lower federal courts to a considerable and ever-broadening degree. The important difference between the 1971 subject were no prosecutions pending, whereas in the 1971 cases there were. Nevertheless, the care with which Justice Black for the majority in the 1971 cases undertook to distinguish Dombrowski signified a limitation of its doctrine.

Justice Black reviewed and reaffirmed the traditional rule of reluctance to interfere with state court proceedings except in extraordinary circumstances. The holding in Dombrowski, as distinguished from some of its language, did not change the general rule, because extraordinary circumstances had existed. Thus, Justice Black, with considerable support from the other Justices, went on to affirm that, where a criminal proceeding is already pending in a state court, if it is a single prosecution about which there is no allegation that it was brought in bad faith or that it was one of a series of repeated prosecutions that would be brought, and if the defendant may put in issue his federal-constitutional defense at the trial, then federal injunctive relief is improper, even if it is alleged that the statute on which the prosecution was based regulated expression and was overbroad.

Many statutes regulating expression were valid and some over-broad statutes could be validly applied, so findings of facial unconstitutionality abstracted from concrete factual situations was not a sound judicial method. “It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good-faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief.”

The reason for the principle, said Justice Black, ﬂows from “Our Federalism,” which requires federal courts to defer to state courts when there are proceedings pending in them.

Moreover, in a companion case, the Court held that, when prosecutions are pending in state court, the propriety of injunctive and declaratory relief should ordinarily be judged by the same standards. A declaratory judgment is as likely to interfere with state proceedings as an injunction, whether the federal decision be treated as res judicata or viewed as a strong precedent guiding the state court. Additionally, “the Declaratory Judgment Act provides that after a declaratory judgment is issued the district court may enforce it by granting ‘[f]urther necessary or proper relief,’ 28 U. S. C. § 2202, and therefore a declaratory judgment issued while state proceedings are pending might serve as the basis for a subsequent injunction against those proceedings to ‘protect or effectuate’ the declaratory judgment, 28 U. S. C. § 2283, and thus result in a clearly improper interference with the state proceedings.”

When, however, there is no pending state prosecution, the Court is clear that “Our Federalism” is not offended if a plaintiff in a federal court is able to demonstrate a genuine threat of enforcement of a disputed criminal statute, whether the statute is attacked on its face or as applied, and becomes entitled to a federal declaratory judgment. And, in fact, when no state prosecution is pending, a federal plaintiff need not demonstrate the existence of the Younger factors to justify the issuance of a preliminary or permanent injunction against prosecution under a disputed state statute.

Beyond criminal prosecutions, the Court extended Younger‘s general directive to bar interference with pending state civil cases that are akin to criminal prosecutions. Younger abstention was also found appropriate when a judgment debtor in a state civil case sought to enjoin a state court order to enforce the judgment. The Court further applied Younger‘s principles to bar federal court interference with state administrative proceedings of a judicial nature, in which important state interests were at stake.

Nonetheless, the Court has emphasized that “only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States.” In Sprint Communications, Inc. v. Jacobs, the Court made clear that federal forbearance under Younger was limited to three discrete types of state proceedings: (1) ongoing state criminal prosecutions; (2) particular state civil proceedings that are akin to criminal prosecutions; and (3) civil proceedings involving orders uniquely in furtherance of the state courts’ ability to perform their judicial functions. In so doing, the Sprint Communications Court clarified that the types of cases previously held to merit abstention under the Younger line defined Younger’s scope and did not merely exemplify it.

—At the English common law, habeas corpus was available to attack pretrial detention and confinement by executive order; it could not be used to question the conviction of a person pursuant to the judgment of a court with jurisdiction over the person. That common law meaning was applied in the federal courts. Expansion began after the Civil War through more liberal court interpretation of “jurisdiction.” Thus, one who had already completed one sentence on a conviction was released from custody on a second sentence on the ground that the court had lost jurisdiction upon completion of the first sentence. Then, the Court held that the constitutionality of the statute upon which a charge was based could be examined on habeas, because an unconstitutional statute was said to deprive the trial court of its jurisdiction. Other cases expanded the want-of-jurisdiction rationale. But the modern status of the writ of habeas corpus may be said to have been started in its development in Frank v. Mangum, in which the Court reviewed on habeas a murder conviction in a trial in which there was substantial evidence of mob domination of the judicial process. This issue had been considered and rejected by the state appeals court. The Supreme Court indicated that, though it might initially have had jurisdiction, the trial court could have lost it if mob domination rendered the proceedings lacking in due process.

Further, in order to determine if there had been a denial of due process, a habeas court should examine the totality of the process, including the appellate proceedings. Because Frank’s claim of mob domination was reviewed fully and rejected by the state appellate court, he had been afforded an adequate corrective process for any denial of rights, and his custody did not violate the Constitution. Then, eight years later, in Moore v. Dempsey, involving another conviction in a trial in which the court was alleged to have been inﬂuenced by a mob and in which the state appellate court had heard and rejected Moore’s contentions, the Court directed that the federal district judge himself determine the merits of the petitioner’s allegations.

Moreover, the Court shortly abandoned its emphasis upon want of jurisdiction and held that the writ was available to consider constitutional claims as well as questions of jurisdiction. The landmark case was Brown v. Allen, in which the Court laid down several principles of statutory construction of the habeas statute. First, all federal constitutional questions raised by state prisoners are cognizable in federal habeas. Second, a federal court is not bound by state court judgments on federal questions, even though the state courts may have fully and fairly considered the issues. Third, a federal habeas court may inquire into issues of fact as well as of law, although the federal court may defer to the state court if the prisoner received an adequate hearing. Fourth, new evidentiary hearings must be held when there are unusual circumstances, when there is a “vital ﬂaw” in the state proceedings, or when the state court record is incomplete or otherwise inadequate.

Almost plenary federal habeas review of state court convictions was authorized and rationalized in the Court’s famous “1963 trilogy.” First, the Court dealt with the established principle that a federal habeas court is empowered, where a prisoner alleges facts which if proved would entitle him to relief, to relitigate facts, to receive evidence and try the facts anew, and sought to lay down broad guidelines as to when district courts must hold a hearing and find facts. “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” To “particularize” this general test, the Court went on to hold that an evidentiary hearing must take place when (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure employed was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Second, Sanders v. United States dealt with two interrelated questions: the effects to be given successive petitions for the writ, when the second or subsequent application presented grounds previously asserted or grounds not theretofore raised. Emphasizing that “[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged,” the Court set out generous standards for consideration of successive claims. As to previously asserted grounds, the Court held that controlling weight may be given to a prior denial of relief if (1) the same ground presented was determined adversely to the applicant before, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application, so that the habeas court might but was not obligated to deny relief without considering the claim on the merits. With respect to grounds not previously asserted, a federal court considering a successive petition could refuse to hear the new claim only if it decided the petitioner had deliberately bypassed the opportunity in the prior proceeding to raise it; if not, “[n]o matter how many prior applications for federal collateral relief a prisoner has made,” the court must consider the merits of the new claim.

Third, the most controversial of the 1963 cases, Fay v. Noia, dealt with the important issue of state defaults, of, that is, what the effect on habeas is when a defendant in a state criminal trial has failed to raise in a manner in accordance with state procedure a claim which he subsequently wants to raise on habeas. If, for example, a defendant fails to object to the admission of certain evidence on federal constitutional grounds in accordance with state procedure and within state time constraints, the state courts may therefore simply refuse to address the merits of the claim, and the state’s “independent and adequate state ground” bars direct federal review of the claim. Whether a similar result prevailed upon habeas divided the Court in Brown v. Allen, in which the majority held that a prisoner, refused consideration of his appeal in state court because his papers had been filed a day late, could not be heard on habeas because of his state procedural default. The result was changed in Fay v. Noia, in which the Court held that the adequate and independent state ground doctrine was a limitation only upon the Court’s appellate review, but that it had no place in habeas. A federal court has power to consider any claim that has been procedurally defaulted in state courts.

Still, the Court recognized that the states had legitimate interests that were served by their procedural rules, and that it was important that state courts have the opportunity to afford a claimant relief to which he might be entitled. Thus, a federal court had discretion to deny a habeas petitioner relief if it found that he had deliberately bypassed state procedure; the discretion could be exercised only if the court found that the prisoner had intentionally waived his right to pursue his state remedy.

Liberalization of the writ thus made it possible for convicted persons who had fully litigated their claims at state trials and on appeal, who had because of some procedural default been denied the opportunity to have their claims reviewed, or who had been at least once heard on federal habeas, to have the chance to present their grounds for relief to a federal habeas judge. In addition to opportunities to relitigate the facts and the law relating to their convictions, prisoners could also take advantage of new constitutional decisions that were retroactive. The filings in federal courts increased year by year, but the numbers of prisoners who in fact obtained either release or retrial remained quite small. A major effect, however, was to exacerbate the feelings of state judges and state law enforcement officials and to stimulate many efforts in Congress to enact restrictive habeas amendments. Although the efforts were unsuccessful, complaints were received more sympathetically in a newly constituted Supreme Court and more restrictive rulings ensued.

The discretion afforded the Court was sounded by Justice Rehnquist, who, after reviewing the case law on the 1867 statute, remarked that the history “illustrates this Court’s historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged.” The emphasis from early on has been upon the equitable nature of the habeas remedy and the judiciary’s responsibility to guide the exercise of that remedy in accordance with equitable principles; thus, the Court time and again underscores that the federal courts have plenary power under the statute to implement it to the fullest while the Court’s decisions may deny them the discretion to exercise the power.

Change has occurred in several respects in regard to access to and the scope of the writ. It is sufficient to say that the more recent rulings have eviscerated the content of the 1963 trilogy and that Brown v. Allen itself is threatened with extinction.

First, the Court in search and seizure cases has returned to the standard of Frank v. Mangum, holding that where the state courts afford a criminal defendant the opportunity for a full and adequate hearing on his Fourth Amendment claim, his only avenue of relief in the federal courts is to petition the Supreme Court for review and that he cannot raise those claims again in a habeas petition. Grounded as it is in the Court’s dissatisfaction with the exclusionary rule, the case has not since been extended to other constitutional grounds, but the rationale of the opinion suggests the likelihood of reaching other exclusion questions.

Second, the Court has formulated a “new rule” exception to habeas cognizance. That is, subject to two exceptions, a case decided after a petitioner’s conviction and sentence became final may not be the predicate for federal habeas relief if the case announces or applies a “new rule.” A decision announces a new rule “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” If a rule “was susceptible to debate among reasonable minds,” it could not have been dictated by precedent, and therefore it must be classified as a “new rule.”

Third, the Court has largely maintained the standards of Townsend v. Sain, as embodied in somewhat modified form in statute, with respect to when federal judges must conduct an evidentiary hearing. However, one Townsend factor, not expressly set out in the statute, has been overturned in order to bring the case law into line with other decisions. Townsend had held that a hearing was required if the material facts were not adequately developed at the state-court hearing. If the defendant had failed to develop the material facts in the state court, however, the Court held that, unless he had “deliberately bypass[ed]” that procedural outlet, he was still entitled to the hearing. The Court overruled that point and substituted a much stricter “cause-and-prejudice” standard.

Fourth, the Court has significantly stiffened the standards governing when a federal habeas court should entertain a second or successive petition filed by a state prisoner—a question with which Sanders v. United States dealt. A successive petition may be dismissed if the same ground was determined adversely to petitioner previously, the prior determination was on the merits, and “the ends of justice” would not be served by reconsideration. It is with the latter element that the Court has become more restrictive. A plurality in Kuhlmann v. Wilson argued that the “ends of justice” standard would be met only if a petitioner supplemented her constitutional claim with a colorable showing of factual innocence. While the Court has not expressly adopted this standard, a later capital case utilized it, holding that a petitioner sentenced to death could escape the bar on successive petitions by demonstrating “actual innocence” of the death penalty by showing by clear and convincing evidence that no reasonable juror would have found the prisoner eligible for the death penalty under applicable state law.

Even if the subsequent petition alleges new and different grounds, ahabeas court may dismiss the petition if the prisoner’s failure to assert those grounds in the prior, or first, petition constitutes “an abuse of the writ.” Following the 1963 trilogy and especially Sanders, the federal courts had generally followed a rule excusing the failure to raise claims in earlier petitions unless the failure was a result of “inexcusable neglect” or of deliberate relinquishment. In McClesky v. Zant, the Court construed the “abuse of the writ” language to require a showing of both “cause and prejudice” before a petitioner may allege in a second or later petition a ground or grounds not alleged in the first. In other words, to avoid subsequent dismissal, a petitioner must allege in his first application all the grounds he may have, unless he can show cause, some external impediment, for his failure and some actual prejudice from the error alleged. If he cannot show cause and prejudice, the petitioner may be heard only if she shows that a “fundamental miscarriage of justice” will occur, which means she must make a “colorable showing of factual innocence.”

Fifth, the Court abandoned the rules of Fay v. Noia, although it was not until 1991 that it expressly overruled the case. Fay, it will be recalled, dealt with so-called procedural-bar circumstances; that is, if a defendant fails to assert a claim at the proper time or in accordance with proper procedure under valid state rules, and if the state then refuses to reach the merits of his claim and rules against him solely because of the noncompliance with state procedure, when may a petitioner present the claim in federal habeas? The answer in Fay was that the federal court always had power to review the claim but that it had discretion to deny relief to a habeas claimant if it found that the prisoner had intentionally waived his right to pursue his state remedy through a “deliberate bypass” of state procedure.

That is no longer the law. “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay was based on a conception of federal/state relations that undervalued the importance of state procedural rules.” The “miscarriage-of-justice” element is probably limited to cases in which actual innocence or actual impairment of a guilty verdict can be shown. The concept of “cause” excusing failure to observe a state rule is extremely narrow; “the existence of cause for procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” As for the “prejudice” factor, it is an undeveloped concept, but the Court’s only case establishes a high barrier.

The Court continues, with some modest exceptions, to construe habeas jurisdiction quite restrictively, but it has now been joined by new congressional legislation that is also restrictive. In Herrera v. Collins, the Court appeared, though ambiguously, to take the position that, although it requires a showing of actual innocence to permit a claimant to bring a successive or abusive petition, a claim of innocence is not alone sufficient to enable a claimant to obtain review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of the Constitution, not to seek to correct errors of fact. But a claim of innocence does not bear on the constitutionality of one’s conviction or detention, and the execution of a person claiming actual innocence would not, by this reasoning, violate the Constitution. In a subsequent part of the opinion, however, the Court assumed for the sake of argument that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” and it imposed a high standard for making this showing. Then, in In re Troy Anthony Davis, the Court found a death-row convict with a claim of actual innocence to be entitled to a District Court determination of his habeas petition. Justice Stevens, in a concurring opinion joined by Justices Ginsburg and Breyer, noted that the fact that seven of the state’s key witnesses had recanted their trial testimony, and that several people had implicated the state’s principal witness as the shooter, made the case “exceptional.”

In Schlup v. Delo, the Court adopted the plurality opinion of Kuhlmann v. Wilson and held that, absent a sufficient showing of “cause and prejudice,” a claimant filing a successive or abusive petition must, as an initial matter, make a showing of “actual innocence” so as to fall within the narrow class of cases implicating a fundamental miscarriage of justice. The Court divided, however, with respect to the showing a claimant must make. One standard, found in some of the cases, was championed by the dissenters; “to show ‘actual innocence’ one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty.” The Court adopted a second standard, under which the petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” To meet this burden, a claimant “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress imposed tight new restrictions on successive or abusive petitions, including making the circuit courts “gate keepers” in permitting or denying the filing of such petitions, with bars to appellate review of these decisions, provisions that in part were upheld in Felker v. Turpin. One important restriction in AEDPA bars a federal habeas court from granting a writ to any person in custody under a judgment of a state court “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The Court has made the significance of this restriction plain: Instead of assessing whether federal law was correctly applied de novo, as would be the course under direct review of a federal district court decision, the proper approach for federal habeas relief under AEDPA is the more deferential one of determining whether the Court has established clear precedent on the issue contested and, if so, whether the state’s application of the precedent was reasonable, i. e., no fairminded jurist could find that the state acted in accord with the Court’s established precedent.

For the future, barring changes in Court membership, other curtailing of habeas jurisdiction can be expected. Perhaps the Court will impose some form of showing of innocence as a predicate to obtaining a hearing. More far-reaching would be an overturning of Brown v. Allen itself and the renunciation of any oversight, save for the extremely limited direct review of state court convictions in the Supreme Court. The Court continues to emphasize broad federalism concerns, rather than simply comity and respect for state courts.

—In the Judiciary Act of 1789, Congress provided that civil actions commenced in the state courts which could have been brought in the original jurisdiction of the inferior federal courts could be removed by the defendant from the state court to the federal court. Generally, as Congress expanded the original jurisdiction of the inferior federal courts, it similarly expanded removal jurisdiction. Although there is potentiality for intra-court conﬂict here, of course, in the implied mistrust of state courts’ willingness or ability to protect federal interests, it is rather with regard to the limited areas of removal that do not correspond to federal court original jurisdiction that the greatest amount of conﬂict is likely to arise.

If a federal officer is sued or prosecuted in a state court for acts done under color of law or if a federal employee is sued for a wrongful or negligent act that the Attorney General certifies was done while she was acting within the scope of her employment, the actions may be removed. But the statute most open to federal-state court dispute is the civil rights removal law, which authorizes removal of any action, civil or criminal, which is commenced in a state court “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” In the years after enactment of this statute, however, the court narrowly construed the removal privilege granted, and recent decisions for the most part confirm this restrictive interpretation, so that instances of successful resort to the statute are fairly rare.

Thus, the Court’s position holds, one may not obtain removal simply by an assertion that he is being denied equal rights or that he cannot enforce the law granting equal rights. Because the removal statute requires the denial to be “in the courts of such State,” the pretrial conduct of police and prosecutors was deemed irrelevant, because it afforded no basis for predicting that state courts would not vindicate the federal rights of defendants. Moreover, in predicting a denial of rights, only an assertion founded on a facially unconstitutional state statute denying the right in question would suffice. From the existence of such a law, it could be predicted that defendant’s rights would be denied. Furthermore, the removal statute’s reference to “any law providing for . . . equal rights” covered only laws “providing for specific civil rights stated in terms of racial equality.” Thus, apparently federal constitutional provisions and many general federal laws do not qualify as a basis for such removal.