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.]