Monday, October 27, 2014

Can State Courts Gratuitously Give Greater Force to Federal Court Precedent than Required?

by Michael Dorf

A little over a week ago, I was a guest on an episode of the Oral Argument podcast hosted by law professors Christian Turner and Joe Miller. My invitation was inspired by two blog posts (here and here), in which I confidently asserted what I took to be the unarguable fact that lower federal court precedents on federal law do not bind state courts--except as a matter of preclusion in subsequent cases involving the same parties. I acknowledged that there are good prudential reasons for state courts to pay careful consideration to federal appeals court rulings by courts with jurisdiction that includes their states, but that as a formal matter, there is no binding precedent.

In the course of the podcast, I provided my explanation for why lower federal court precedent doesn't bind state courts, and the Oral Argument link above itself provides some additional links relevant to the issue, including a concurrence by Justice Thomas in Lockhart v. Fretwell, in which he makes the core point as follows:
[T]he Court of Appeals [for the Eighth Circuit] appears to have been under the impression that the Arkansas trial court would have been compelled to follow [an Eighth Circuit precedent] by the Supremacy Clause. It was mistaken. The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located. [Citations.] An Arkansas trial court is bound by this Court's (and by the Arkansas Supreme Court's and Arkansas Court of Appeals') interpretation of federal law, but if it follows the Eighth Circuit's interpretation of federal law, it does so only because it chooses to and not because it must.
During the podcast I got a little bit of pushback from Professors Turner and Miller against what I'll cheekily call the Thomas/Dorf position. I won't offer a full defense of that position here, except to say that Congress could have authorized appeals from the state courts to the lower federal courts on questions of federal law (as stated by Justice Story in the landmark Martin v. Hunter's Lessee); indeed, Congress perhaps even could have required state courts to follow lower federal court precedents on federal law; but there is no reason to think that Congress ever did obligate the state courts to follow lower federal court precedent; and given the Madisonian compromise (i.e., the fact that Article III leaves to Congress the decision whether to create any lower federal courts or instead to leave federal claims to be litigated in the first instance in the state courts, absent the limited original jurisdiction of the SCOTUS), the default assumption must be that state courts would be bound by federal law decisions of the SCOTUS only. Where there is a departure from this scheme (as there arguably is for lower federal court habeas corpus "review" of state court decisions), it is pursuant to a statute.

But now I want to probe a bit further and ask whether a state high court could decide that it will be bound by lower federal court decisions even though it is not bound to do so. A 2013 decision of a South Carolina intermediate court of appeals states that Fourth Circuit decisions on federal law are binding on the South Carolina courts. That may be a mistake as a matter of South Carolina precedent. The ruling cites a 1946 South Carolina Supreme Court case that says that federal authorities "are controlling of the meaning and effect of the Federal Constitution," but it is not entirely clear that the SCSC meant that lower federal court authorities are controlling. True, the balance of the opinion cites both Supreme Court and lower federal court decisions, but I read it as probably treating only the SCOTUS rulings as fully binding. So the recent statement by the South Carolina intermediate court of appeals may not even be correct as a matter of South Carolina precedent. Moreover, it's quite possible that if it is correct, that's because the South Carolina courts are making the same mistake that the Eighth Circuit was making in Lockhart v. Fretwell, i.e., perhaps the South Carolina courts mistakenly believe that they are obligated as a matter of federal law to give binding effect to Fourth Circuit rulings.

But consider another possibility that was raised during the podcast. Suppose that a state high court were to say something like this: We know that lower federal court rulings do not formally bind us but in the interest of comity and prudence, we hereby adopt a rule requiring courts in this state to give binding effect to the federal law rulings of the federal appeals court for the Circuit that encompasses this state. Even Justice Thomas could be read to say that this would be permissible--although it's not entirely clear: When he says that Arkansas can "choose[] to" follow Eighth Circuit precedent, he could mean that Arkansas courts could follow a self-imposed rule of considering themselves bound by Eighth Circuit precedent, or he could mean only that Arkansas courts could choose in any particular case to reach the same result as the Eighth Circuit, after applying their own best analysis of the relevant sources.

Let's put aside what Justice Thomas might have meant. Could South Carolina or any other state voluntarily adopt the practice I've described on comity, prudential, or other grounds? I said in the podcast, and I'll repeat now, that I think the answer is no. Why not? Most fundamentally, because  the question of whether state courts are bound by federal appeals court rulings on questions of federal law is itself a question of federal law.

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

I reach this conclusion with considerable confidence but not with 100% confidence, because it's not quite true that federal law determines everything about how state courts make rulings of federal law. Suppose a federal issue being litigated in state court and that some factual question is crucial. The state court will apply state rules of evidence and procedure (absent special considerations that sometimes arise under the FELA and the so-called "reverse-Erie" doctrine). Thus, one might think that there is some state leeway to decide how to decide questions of federal law.

Even so, I don't think that leeway extends to state court discretion over what authorities are binding in deciding the substance of federal law. Recognizing longstanding difficulties in drawing sharp distinctions between substance and procedure, I would say that the state court's obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law, not to gratuitiously outsource the job. After all, if the South Carolina courts can gratuitously decide to accept the rulings of the Fourth Circuit as definitive, then they would seem to be able to accept some other body's determinations, like the Second Circuit's, or the views expressed on this blog. In each case, the South Carolina courts would be violating the obligation (under the Supremacy Clause) to be bound by federal law, not somebody else's understanding of federal law, even if that somebody else is learned in federal law.

Finally, I note two points about the foregoing analysis. First, it does not have a systematic liberal or conservative bias. A state court that gratuitously chooses to be bound by federal appeals court precedent will skew liberal when the federal appeals court precedent is more liberal than the results that the state court would produce absent the practice, and more conservative when the federal appeals court precedent is more conservative.

Second, a state court that wants to follow federal appeals court precedent probably can get away with doing so in most cases. That's because the only mechanism for correcting the state courts is review on certiorari by the SCOTUS. But if the SCOTUS grants cert to review a case from such a state court, the issue will no longer be whether the state court was right to follow the federal appeals court precedent. Instead, the issue will be whether the precedent the state court followed was correct.

[Update: You can hear some further discussion of this question in the opening minutes of the new episode of Oral Argument, featuring Professor Steve Vladeck as the guest.]


Marty Lederman said...

Mike: I'm not sure why you think that a state court could not decide to adopt a rule of deferring to CTA4 interpretations of federal law, at least insofar as that rule of deference were based on some reasonable ground, such as avoiding inconsistencies of results in a particular state, or efficiency, or the established wisdom of CTA4 judges. Indeed, they could even (hypothetically) establish a rule of presumptive deference to Dorf on Law (I know I do!), if, for example, they determine that your constitutional views (in every case other than this one) tend to be more well-considered than anyone else's, or more reflective/predictive, on the whole of what the SCOTUS will eventually do.

You write that "the state court's obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law," and that the Supremacy Clause obligation is to "be bound by federal law, not somebody else's understanding of federal law, even if that somebody else is learned in federal law."

I don't see how the Supremacy Clause --which merely prescribes that federal law prevails over inconsistent state law -- imposes any such "follow your own best lights"/anti-deference principle. To be sure, it, along with the adjacent oath clause, requires state judges to be "bound" by federal law -- but that's an obligation that applies to all judges, federal, state, and local, and indeed to all government officials. That obligation doesn't tell such judges and officers *how* to assess what federal law requires, let alone prevent them from relying upon the views of others in trying to most efficiently and reliably adjudicate federal questions in a complex federal system. All such courts and officials regularly decline to consider federal law questions afresh. They often defer substantially -- sometimes irrebuttably -- to other actors, especially the Supreme Court, on such questions.

Wouldn't your view call into question, e.g., the practice of state and federal courts following Supreme Court precedent; the doctrine of stare decisis within a circuit; the ordinary practice of executive officials in presuming that prevailing case law "governs" legal questions; the everyday decisions of individual judges and Justices to not dissent from opinions (or precedents) that they think are wrongly decided, etc.?

Michael C. Dorf said...

Marty: Thanks for the (undeserved) epistemic deference!

I agree that the Supremacy Clause, standing alone, isn't sufficient to establish an obligation of a state (or other) court to decide federal issues according to its own best lights rather than to give epistemic (or other) deference to some other authority. As you note, if it were, then the practice of vertical stare decisis itself would be invalid. And more. What I was infelicitously trying to say was that the Supremacy Clause obligates state courts to follow federal law, and that the content of federal law is itself determined by federal principles--subject to the caveat I gave in the post regarding state procedure and state evidence law. As I noted, that caveat leads me to think it might be possible that federal law would sometimes allow state courts the freedom to decide for themselves when to grant epistemic or other deference in deciding questions of federal law. I don't rule that possibility out, but I think that the presumption ought to be in favor of federal law determining both the ceiling and the floor for who counts as an epistemic or other authority on federal law.

As Steve noted in his turn on the podcast, Danforth v. Minnesota presents an arguable challenge to my view (which seems closer to the view expressed by Roberts and Kennedy in dissent). But in a follow-up post (possibly on Thursday), I'll explain why I think Danforth v. Minnesota doesn't undermine my view.

Marty Lederman said...

Hmmm . . . . So your claim is (i) that federal law, not state law, determines *how* state courts are to answer questions of federal law, and presumably, on the "merits," (ii) that federal law precludes the particular choice of deferring to the relevant court of appeals' interpretations.

I'm skeptical of both propositions.

As to the first: It's not obvious to me that state courts are *constitutionally* obliged even to apply the same interpretive rules that lower federal courts are. For example, and notwithstanding the "broad" reading of Cooper v. Aaron, I don't think that state courts (and state officials) are generally obligated to conform their decisions and conduct to "binding" Supreme Court precedent -- although basic principles of good government (and perhaps even the due process clause) counsel in favor of such compliance in virtually all such cases.

As you know, Mike, the SCOTUS recently said otherwise in dicta (, citing only the Supremacy Clause for this startlingly magisterial proposition: "When this Court has fulfilled its duty to interpret federal law, a state court may not contradict or fail to implement the rule so established." The Supremacy Clause does not say anything, however, about the "bindingness" of Supreme Court precedents on state courts; and I'm not sure what else in federal law prescribes how state courts are to interpret federal law.

Even if federal law does impose some limits on state courts' methods of interpretation and judgment, however -- such as the new Marmet Health Care Center state-court version of Rodriguez de Quijas quoted above -- where in federal law does it say that state courts can't defer to court of appeals precedents? I would think that federal law does not even prescribe such rules for *federal* courts, e.g., their stare decisis rules, such as whether courts of appeals have to follow previous panel decisions; whether district court rulings are "binding" on other district courts; etc. Say, for example, that CTA1 decided that in cases where five or more courts of appeals have unanimously interpreted a federal law in one way, it will defer to the consensus view. A stupid rule perhaps . . . but precluded by federal law? I don't think so. And if federal law does not even instruct lower federal courts on the proper forms of deference as to federal law (other than Rodriguez de Quiras), what's the argument that it sets the rules of interpretive deference as between state courts and lower federal courts? Or, more particularly, that the rule it has set is "state courts can't presumptively adopt the interpretations of their federal CoA counterparts"?

P.S. I think the Danforth dissent is dead wrong. Look forward to your defense of it!

Michael C. Dorf said...

Just two thoughts and I'll defer the rest to my next post:

1) I won't end up defending the Roberts/Kennedy view in Danforth. I'm going to say that the Danforth majority relies on a principle not applicable here.

2) In the most basic sense, the prohibition on giving binding effect to what federal law regards as non-binding epistemic authorities is simply a corollary of the obligation to follow/apply the law. But more on that in the follow-up as well.

Jim said...

Doesn't the Supreme Court's decision in West v. AT&T, 311 U.S. 223, 237 (1940), establish as a matter of federal law an obligation as to how federal courts should weigh the decisions of lower state courts on issues of state law, at least where the state's highest court hasn't spoken on the issue? In that case, the Supreme Court held that a decision by an intermediate state appellate court on an issue of state law is "a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Under Professor Dorf's reasoning, shouldn't the effect of an intermediate state appellate court's ruling be determined under the law of the state in question, and not through a broad Supreme Court pronouncement (seemingly under federal law) that requires federal courts across the land to give presumptive weight to such rulings? What am I missing?

Michael C. Dorf said...

Jim: The case you cite is part of the Erie doctrine and thus an interpretation of the Rules of Decision Act. It governs the standards for identifying state law in federal court. It does not apply to the determination of federal law in state court. Although that process is sometimes called the "Reverse-Erie" problem, there are disanalogies, and we were not discussing the question you raise.

Hashim said...


I think Jim had a better point about west v. at&t than you gave him credit for. After all, the underpinning of Erie is famously contested. And especially back in 1940, it was entirely possible that the Court viewed Erie as having constitutional underpinnings.

If so, then the deference that Court held must be paid to lower state courts when applying Erie is in pretty serious tension with your position (about which I'm seriously skeptical, for the reasons Marty has given).


Michael C. Dorf said...

Ah, thanks Hash, now I understand the point Jim was making: namely, if federal law can determine the procedure by which federal courts figure out state law, why can't state law determine the procedure by which state courts determine federal law?
Two answers:
1) For reasons I expounded at pp 697-698 in Prediction and the Rule of Law,, I don't think the approach propounded in West, if read for all it is worth, makes much sense. (As I note there, leading civil procedure gurus protested at the time.)
2) Second, for reasons similar to those that Hart & Wechsler give in their criticism of the "reverse Erie" doctrine, the Erie situation and the reverse Erie situation are different in important respects, in light of the state courts' role in federal law.

AF said...

I've always thought that courts are bound by the precedents of courts that have appellate jurisdiction over its decisions. For the simple reason that if they don't follow the precedents, they will be (or at least can be) reversed.

Jim said...

Thanks for the follow-up to my question -- and thanks also to Hashim for the more artful restatement of that question. I'll check out the sources cited by Professor Dorf, and I look forward to the next post on this topic.

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magicmatchmaking said...

Isn't this a very grey area? If State Courts did not follow lower federal court rulings, wouldn't this just undermine the federal system making them glorified patent and bankruptcy courts.

If this starts to become the norm, won't most lawyers file for removal jurisdiction if the state courts are ruling contrary to federal?

Also wouldn't this open the municipalities to civil rights lawsuits.

Case in point the NY Safe Act. The 7 round magazine limit was found unconstitutional in a district court.

If this is so cut and dry then why are some prosecutors saying "Some district attorneys in New York, including Monroe County's Sandra Doorley and William Fitzpatrick of Onondaga County, had questioned whether the ruling was applicable to state courts or if it was binding outside of the state's western district."

So come prosecutors believe that district court cases are binding within the district as NY has two US district courts.

The governor on the contrary "But Gov. Andrew Cuomo and Kehoe indicated that the ruling is the law, unless it is overturned. The state is appealing the decision." So he believes the District court decisions are binding.

Also Kehoe who is Sheriffs' Association Executive Director If (sheriffs) aggressively enforce something that they've had notice is unconstitutional, then we think they expose themselves to liability."

So I was always under the impression that it would be very costly for municipalities to arrest against federal precedent.

I actually commented on your article about district court injunctions and your points prove that our governments are in shambles. Not only the Federal to State but the State to County, City and Town Governments.

If no one bothers to appeal to the highest courts, innocent people can still be arrested and incur large legal fees and blemishes on their record for no reason. Even when the highest courts rule, the executive branch doesn't even listen most of the time.

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