By Mike Dorf
My latest Verdict column discusses the fact that the Supreme Court has been taking its time deciding whether to grant or deny review in the various same-sex marriage cases currently pending on petitions for certiorari. I explain why none of the Defense of Marriage Act cases is procedurally ideal but I also say that the issue is simply too important for the Court to punt. In the course of my analysis, I note how prior to 1988 the Supreme Court had a large non-discretionary docket and that under Section 25 of the original Judiciary Act of 1789 the Court was obligated to hear cases in which a state court held an Act of Congress invalid. Herewith, a couple of further observations:
1) Section 25 of the 1789 Act talks about suits "where is drawn in question the validity of a treaty or statute," thereby expressly contemplating that state courts would exercise the power of judicial review, not only to strike down unconstitutional state laws--as mandated by the Supremacy Clause--but also to strike down unconstitutional federal laws. It's possible, I suppose, that the validity of a federal statute could be drawn in question without the question being one of constitutionality. For example, a plaintiff might rely on a federal statute enacted in 1790 and the defendant might reply that the 1790 statute was not valid because it was repealed in 1791. But I think such examples are far-fetched. The more typical case would involve a constitutional challenge and so Section 25 shows that the first Congress--including many of the Constitution's framers--accepted the power of judicial review of acts of Congress that would later be exercised in Marbury v. Madison. That's not especially surprising, of course. There is a great deal of evidence that the framers took judicial review for granted. Still, I had never previously thought about Section 25 as one of the pieces of such evidence. (Or if I read this in the ginormous literature on judicial review, I forgot that I did so.)
2) Rule 10 of the Supreme Court Rules sets forth criteria that guide (but do not bind) the Court in deciding whether to grant or deny a petition for a writ of certiorari. As lawyers who practice before the Court know, divisions of authority among the federal appeals courts, the state courts, and between state and federal courts--often simply denoted "splits"--count substantially as a reason for granting review, and that is reflected in Rule 10. The other two circumstances set forth in the rule are lower court decisions that flout settled law or that involve important questions of federal law that remain unresolved by the SCOTUS. Notably, neither of the two criteria that guaranteed review of a state court judgment under Section 25 of the 1789 Judiciary Act--rejection of a federal challenge to a state law or invalidation of a federal law or treaty--makes an explicit appearance in Rule 10.
To be sure, if a lower court strikes down a federal statute, even if there is no split thus created, one could say that the case presents an important issue of federal law that should be settled by the SCOTUS. On this reading, whichever way the DOMA cases had come out in the lower courts, SCOTUS review would have been appropriate.
Still, the importance of the issue, simpliciter, does not fully capture the added urgency that the Court ought to feel--and, I would say, usually does feel--when an Act of Congress has been struck down. Even if Section 25 of the 1789 Act shows that from the earliest days of the Republic it was understood that Acts of Congress would, from time to time, be held invalid, the provision for review by writ of error also showed that the first Congress understood that invalidation of an Act of Congress was a big deal.
But does this argument prove too much? After all, the 1789 Act also created a right to review by writ of error in all cases in which the state courts rejected a federal challenge to state law. Today such a rule would be unworkable because federal constitutional claims are available in an enormous number of cases in the state courts--including just about every criminal case in which the defendant challenges the legality of police conduct leading to the discovery of evidence. So, given that the SCOTUS no longer take its priorities from the part of Section 25 that authorized a right of review in cases rejecting assertions of federal right in state court, perhaps the SCOTUS also ought to disregard the policy underlying the part of Section 25 that authorized a right of review in cases invalidating Acts of Congress.
I'll admit that there's a certain logic to that suggestion but I nonetheless think that the invalidation of an Act of Congress is a big deal--and a much much bigger deal than a state court's rejection of a federal claim of right. Perhaps these were equivalently important events in the early Republic, but they no longer are.
Hence, if it were up to me, I'd probably amend Rule 10 to make the invalidation of a federal statute by a lower court an express cert criterion. There still might be cases in which it would be appropriate to deny cert notwithstanding the invalidation of a federal statute--if the federal statute were obviously unconstitutional, say, and the lower courts were all so holding--but in general I think it would be a very rare lower court case invalidating an Act of Congress that doesn't deserve SCOTUS review.