Monday, November 03, 2014

Why Danforth v. Minnesota Does Not Undermine My View About State Court Decisions To Follow Lower Federal Court Precedent

by Michael Dorf

Last week I asked whether state courts can gratuitously give to federal appeals court precedents more binding force than they have of their own accord--which is to say ANY binding force. My answer was no. The binding effect--or as it turns out here, lack of binding effect--of a federal appeals court precedent on a state court is itself a question of federal law, and states are not generally free as a matter of state law to "over-enforce" federal law.

My post on this subject generated a very interesting discussion, in the comments, in private correspondence, and on other sites. The most potent challenge to my position comes from Steve Vladeck, both in his appearance on Oral Argument the week after mine and in a blog post. Christian Turner favorably cited Vladeck's argument on his blog (in the course of making some broader points). Professors Vladeck and Turner, as well as others, rely on Danforth v. Minnesota for the proposition that states can in fact over-enforce federal law as a matter of state law. As I'll explain, that's a plausible claim, but I think that it ultimately misreads Danforth.

To see why, we need to start with some basics. Under the Orwellian-named Antiterrorism and Effective Death Penalty Act (acronymed AEDPA, which is pronounced "edpa" by the cognoscenti) and an earlier judicial decision called Teague v. Lane, federal courts considering habeas corpus petititions from state prisoners are generally barred from granting relief where the petition relies on a "new rule" of constitutional law--i.e., a rule that was not "dictated by precedent" at the time the petitioner's original case became final. Danforth involved Teague rather than AEDPA but the basic rationale of both the statute and the substantially overlapping judge-made rule is the same: Federal habeas as a collateral remedy exists to ensure that state courts comply with federal limits as they exist at the time they consider the cases that come before them, rather than for the development of the case law. (Many people, including me, think this is a too-narrow conception of habeas, but the Rehnquist/Roberts Court and Congress disagree with us, so we take this as given.)

In Danforth, the question was whether the Minnesota Supreme Court was entitled to disregard Teague--and thus to give a habeas petitioner the benefit of a new rule on state habeas review. The Court said yes. Danforth thus appears to say that a state supreme court can choose to give greater effect to a federal precedent than it is required to give it, and this does indeed appear to support the position of my critics.

But a closer look shows that Danforth is not generalizable in the way that the critics think. Here is how the Danforth majority characterized Teague:
A close reading of the Teague opinion makes clear that the rule it established was tailored to the unique context of federal habeas and therefore had no bearing on whether States could provide broader relief in their own postconviction proceedings than required by that opinion.
In other words, the Teague rule is best understood as either a construction of the federal habeas statute itself or as a freestanding judicial gloss on the limits applicable to a federal court when considering a habeas petition from a state petitioner, in light of principles of federalism. Danforth establishes no state court power to disregard some general principle of federal law stating that new rules are nonapplicable in all (i.e., both federal and state) collateral proceedings because there is no general principle of federal law stating that new rules are are nonapplicable in all collateral proceedings.

By contrast, my interlocutors have been willing to concede (at least for the sake of argument) that there is a general principle stating that lower federal court precedents do not bind state courts. To get from there to the principle that a state court can gratuitously decide to be bound by lower federal court precedent (or anything else that is not binding of its own force), one must posit that state courts can disregard such a principle. Whatever reasons one might have for thinking that, Danforth v. Minnesota, properly understood, should not be among them.

By the same token, Danforth doesn't affirmatively help my argument either. In Danforth the Court repeats the longstanding principle that state law can provide remedies for federal law violations beyond those that are required by federal law itself. That means that there are contexts in which state courts are allowed to over-enforce federal law.

Now if anything turned on it, I would contest that last proposition. I would say that a state court selection of a remedy that goes beyond what federal courts provide is not actually over-enforcement; it's simply a recognition that the law of remedies is not strictly tied to the law of substantive liability. But I don't think that anything turns on this characterization issue, so I'll concede for the sake of argument what I said at the end of the last paragraph: Danforth affirms that there are some contexts in which states can be said to over-enforce federal law.

However, other cases--such as Michigan v. Long--make clear that there are other contexts in which state over-enforcement of federal law is impermissible, and efforts in that direction would simply amount to an erroneous construction of federal law. The question, therefore, is whether the binding effect of lower court precedent falls into the Danforth category or the Long category. That question must be answered by reference to the specifics at issue here, not the general question of whether over-enforcement is ever permissible. Indeed, thinking of this issue as a matter of "over" or "under" enforcement of federal law is at best an analogy, since (as I noted in my last post) a state court that voluntarily decides to be bound by some otherwise non-binding authority on federal law is not systematically opting to give more or less force to federal law; it is instead (at least in some cases) merely opting to give different content to federal law than it would give if making its own best judgment.

To the extent that the Danforth/Long dichotomy does apply, I do think that the current issue falls in the Long category. Under the Madisonian Compromise, Congress didn't even have to create any lower federal courts; prior to 1875 the lower federal courts did not have federal question jurisdiction; and even then and for a century thereafter, there was an amount-in-controversy minimum in federal question cases. Accordingly, for much of U.S. history, state courts could not treat as binding the decisions of lower federal courts because there would be no such decisions. So when did state courts get this power? Did it exist before lower federal courts had federal question jurisdiction? If so, what was it? A power to treat just about any source (such as a treatise or the opinion of wise men or of the House of Lords) as binding with respect to federal law? That seems a reductio of the argument of my interlocutors. Yet if the power sprang into existence with the creation and subsequent expansion of lower federal court authority to decide questions of federal law, that is attributing an awful lot to a conferral of jurisdiction on federal courts that says nothing whatsoever about state courts.

Finally, I want to make clear that I do not have a policy objection to Congress making federal appeals court rulings on federal law binding on the states within their respective coverage, nor do I have a policy objection to Congress authorizing state courts to voluntarily treat such rulings as binding (although I would have a policy and probably a constitutional objection to Congress authorizing state courts to treat other non-SCOTUS sources of federal law as binding). I just don't think Congress has done either of those things or that, absent a plausible claim that Congress did, there is authority anywhere else for state courts taking this action.


Tom Lee said...

Hi Mike, i just saw this very interesting thread and agree with you that Danforth is inapposite and you are of course right that the Const doesnt require lower fed cts. But if a state supreme ct wants to treat the fed law opinions on point of its regional fed appellate ct (which have existed since the Evarts Act, 1891) as binding (and these might under or over enforce fed law), then I cant see how such treatment would violate the Supremacy Clause, just as it wouldnt violate the Supremacy Clause if a state supreme ct had broader standing rules and upheld a fed law claim that could not have been brought by the same litigant as an initial matter in fed ct. Tom Lee

Michael C. Dorf said...

Hi Tom,

Thanks for the comment. The core of my argument (from the prior post) goes like this: The Supremacy Clause requires state courts to apply ACTUAL federal law, not some other expert's view about the content of federal law. Now you might say, wait a minute: If Congress COULD make decisions of the lower federal courts binding on the state courts, then the Supremacy Clause doesn't have the meaning I attribute to it; if it did, then Congress would be acting unconstitutionally in making those decisions binding. But I think that only means that when I say the Supremacy Clause obligates state courts to use their best judgment, that's the default assumption, subject to some power in Congress to establish hierarchical relations among courts that give rise to binding precedent. And maybe Congress even has the ower to make the federal app court decisions binding on the state courts in the absence of appeals from state court to a federal appeals court--in a kind of reverse Rules of Decision Act. But the fact that Congress can do this sort of thing (to some extent) does not mean that the states can do it on their own.

As I indicated in my last post on the topic, I think there's a rough procedure/substance line here, and broader standing rules fall on the (permissible) procedure side.

Justin said...

You're trying too hard here. I don't see it. How would the Supreme Court review this? Let's say the Supreme Court accepts cert from a South Carolina Supreme Court decision that purports to rely on the 4th Circuit's ruling in a Contract Clause case - say, the recent Cherry decision - to hold that the City of Charleston can legislatively revoke its bonds because it would still be subject to suit in South Carolina courts, albiet with a "reserved legislative authority" defense that would be evaluated under South Carolina state law.

The Supreme Court is unlikely to say "the decision is right as a matter of Constitutionally law, but should be reversed because it failed to use its own reasoning," or the reverse - even if it attempts to take Cert on just the question you propose. As you yourself said, it is hard to deal with the precedent issue without the intertwining substantive issue.

The reality is, South Carolina is allowed to decide how it analyzes federal law in any way it wishes, so long as it does not impermissibly then shield that federal law from review - that's the lesson from Michigan v. Long. If the South Carolina Supreme Court analyzed federal law by reading tea leaves, that's essentially its prerogatives, so long as it does so indiscriminately (see also the response to Professor Baude's comments here: )

Because the Federal Government allows a federal forum for federal claims, South Carolina can do generally what they want with federal claims, so long as their courts 1) don't deny jurisdiction to hear them, and 2) don't discriminate against them in particular, or against particular types of federal claims. And I think this is right even if Danforth is wrong, because the state Supreme Courts are still subject to substantive review of their judgments by the Supreme Court.

Hashim said...

As you note, wholly apart from Danforth, state courts can provide greater state-law remedies for federal-law violations than federal courts would hold is required by federal law. For example, I assume you have no objection if a state court chooses to provide greater exclusion of evidence for 4A violations, or treat more errors as structural rather than harmless. (Michigan v. Long seems entirely distinguishable, because there the state was mistakenly interpreting the federal constitution *itself.*)

Likewise, why can't state courts adopt their own state-law procedures for resolving federal-law questions? And why can't that procedure be to defer to federal courts, or learned treatises, or whomever else the State thinks warrants deference because of their greater wisdom than state-court judges? Nothing in the Constitution expressly speaks to state-court procedure for resolving federal-law questions.

This ties nicely into Will Baude's recent post about ND's super-majority rule for invalidating state laws on constitutional grounds (either state or federal). Do you think that somehow violates the federal constitution? It seems to me that it's entirely permissible, for the reasons articulated above.

Michael C. Dorf said...

Justin: I already made your point in my last post, when I concluded: " 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."

Hash: See next comment.

Michael C. Dorf said...

1) You write about Michigan v. Long that "there the state was mistakenly interpreting the federal constitution *itself.*" But that's my point exactly. Michigan v. Long is about the substantive construction of federal law (including the federal Constitution), NOT about the state authority to give additional remedies for violations.

2) I agree that this is connected to the case to which Will points. Indeed, I called attention to that very set of issues in my first post on the subject by invoking the so-called "reverse-Erie" doctrine. As I noted on Will's facebook page over the weekend, I think the supermajority issue he flagged is profoundly interesting and as-yet undecided, largely because the recent cases (especially Haywood and Felker) seem to go beyond the anti-discrimination principle of Testa. I don't know what the right answer is there: my tentative thought is that the supermajority rule is an impermissible (albeit non-discriminatory) burden on federal rights. But whatever the right answer, I don't think it dictates the result here.

More in the next comment.

Michael C. Dorf said...

Hash: Let's run with your idea. Suppose that the South Carolina Supreme Court says that when in doubt, we look to Story's Commentaries as the authoritative source for constitutional law, so long as they don't contradict any current case law. I'll bet that if the SCOTUS took a case from South Carolina in which it did that, the SCOTUS would say that not only is the substantive rule wrong (if it thought it wrong) but that the decision mechanism was wrong, much as it did w/r/t old-but-not-yet-overruled precedent in Rodrigueze de Quijas. (That case, to be sure, came from a federal appeals court rather than a state court but I didn't read the relevant principle to be rooted in the SCOTUS's supervisory power, so it should apply to state courts as well.)

Okay, you probably have further objections, which I'll read, but I think I'll hold off on replying again until I come back to all of this in a further post.

Hashim said...

You're basically arguing that federal law itself mandates how it should be interpreted (with respect to questions not resolved by precedent). But, of course, supreme court justices themselves hotly debate that trans-substantive question; more to the point, none of them have ever seriously tried to argue that prior opinions in this regard have binding stare decisis effect, independent of particular substantive doctrinal tests/standards. For example, if case 1 says not to consider legislative history when interpreting a federal statute, does a court in case 2 have to engage in a stare decisis analysis before it can consider legislative history?

Rodriguez is different because it's just telling lower courts that they can't ignore precedent. That is much more modest than purporting to dictate the proper method for interpreting federal law on questions not controlled by precedent.

Finally, it seems to me that, if the super-majority rule is valid, then deference to federal courts is valid a fortiori. After all, the super-majority rule essentially requires deference to a minority of state-court judges, which is far less defensible than deferring to federal judges. (As for the super-majority rule itself, I take your point about the uncertainty post-Felker/Haywood, but I'm certainly not inclined to expand those dubious decisions. As far as federal law is concerned, a state has every right to force its judges to comply with Thayerian restraint, just as the state has every right only to pick judges who themselves agree with Thayer.)

Asher said...

A few thoughts.

1. Even if a state supreme court followed Story's Commentaries and the Supreme Court admonished it for doing so, that admonition would be dictum. If the Court disagreed with Story, its holding would be that Story's position was wrong, not that reliance on Story was wrong. The same's true in Rodriguez de Quijas; the Fifth Circuit actually got affirmed in that case because the Court overruled the precedent it chided the Fifth Circuit for overruling. And had the Court reaffirmed its precedent, that reaffirmance would be the Court's holding, not that lower courts should never predictively overrule. So at the least your rule doesn't seem enforceable, except by way, I guess, of GVRs in which the Court might vacate a state court decision that relied on circuit precedent and instruct the state court to exercise independent judgment.

2. The Story hypo is much more troubling than the South Carolina Supreme Court instructing lower courts to follow the Fourth Circuit because following Story in every case where there's no controlling precedent is obviously a long way off from the methodology the Court applies in constitutional cases - a mix of text, inference from precedent, reliance on historical sources other than Story, etc. On the other hand, the Fourth Circuit, presumably, typically interprets the Constitution in about the same way the Court does, and all the South Carolina Supreme Court would be doing is telling lower state court judges to defer to the Fourth Circuit's application of Court-approved interpretive methodology, presumably on the reasonable assumption that the Fourth Circuit is generally better at constitutional law than lower state-court judges.

3. It strikes me that what you say state courts can't do shades very easily into what they plainly can do and frequently do. Every day, state courts say with little analysis that their circuit's decision (or some other circuit's decision) on an open question of constitutional law is persuasive and follow it - or, even simply cite a circuit case that holds something about the Constitution and follow it, without calling it binding, but without even saying in so many words that the court's persuaded by it. You can't be saying that the state court has some obligation under the Supremacy Clause to discuss in any detail why they find a circuit's decision persuasive. So all you're saying they can't do is declare themselves bound by circuit precedent. Well, suppose the Supreme Court enforces your rule by way of GVR when a state supreme court says it's bound by circuit precedent; all the state court has to do is to stop declaring itself bound and claim it was persuaded. It doesn't even need to say why.

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