Reconsidering Murdock: State-law reversals as constitutional avoidance

University of Chicago Law Review

Volumn 77, Issue 3, 2010, Pages 1335-1400

  Mitchell, Jonathan F ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 78649953650     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (351)

1. See, for example, World-Wide Volkswagen Corp v. Woodson, 585 P2d 351, 354 (Okla 1978) (adopting an expansive interpretation of Oklahoma's long-arm statute to reach an out-ofstate automobile distributor and retail dealer).
2. See, for example, Ex parte NAACP, 91 S2d 214 (Ala 1956);
3. City of Columbia v. Bouie, 124 SE2d 332 (SC 1962).
4. See, for example, Herb v. Pitcairn, 324 US 117, 125-26 (1945) (describing the reasons for the Supreme Court's refusal to review state-court determinations of state law as "so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights.");
5. William J. Brennan, Jr, State Constitutions and the Protections of Individual Rights, 90 Harv L Rev 489, 501 (1977) (asserting that state-court interpretations of state constitutional provisions "not only cannot be overturned by, they indeed are not even reviewable by, the Supreme Court of the United States. We are utterly without jurisdiction to review such state decisions.");
6. Ernest A. Young, The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda, 10 U Pa J Const L 399, 406 (2008) (noting that "Federal Courts scholarship ... tends to view [the notion that] state courts are the final word on state law as fundamentally constitutive of our constitutional order"). Some recent scholarship has suggested that the Supreme Court's power to review a state supreme court's interpretation of state law may be more extensive than the conventional wisdom allows.
7. See, for example, Henry Paul Monaghan, Supreme Court Review of State Court Determinations of State Law in Constitutional Cases, 103 Colum L Rev 1919 (2003) (arguing that the Supreme Court has "ancillary jurisdiction" to review de novo state-court determinations of state law in cases where the Constitution or federal law "directly constrains or incorporates state law");
8. John Harrison, Federal Appellate Jurisdiction over Questions of State Law in State Courts, 7 Green Bag 2d 353 (2004) (arguing that Article III of the Constitution permits the Supreme Court to review state-law questions decided by state courts).
9. 87 US (20 Wall) 590 (1874).
10. See, for example, Howlett v. Rose, 496 US 356, 366 (1990) (collecting authorities);
11. Charles Alan Wright and Mary Kay Kane, The Law of Federal Courts 793-98 (West 6th ed 2002) (same).
12. See, for example, Northwest Austin Municipal Utility District Number One v. Holder, 129 S Ct 2504, 2508 (2009);
13. INS v. St. Cyr, 533 US 289, 299-300 & n 12 (2001) (collecting authorities);
14. Ashwander v. Tennessee Valley Authority, 297 US 288, 341-56 (1936) (Brandeis concurring).
15. Green Oil Co v. Hornsby, 539 S2d 218, 222 (Ala 1989).
16. See notes 81-83 and accompanying text.
17. See note 84 and accompanying text.
18. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv L Rev 129 (1893).
19. See also Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation 230-90 (Harvard 2006) (defending Thayerian deference).
20. See Cass R. Sunstein, A Constitution of Many Minds 118 (Princeton 2009) (noting that Thayerianism "has no supporters on the Supreme Court").
21. Nothing in this proposal assumes or implies that the justices are result-oriented when they decide cases. It accepts that their decisions to reverse state-court rulings rest on sincere (even if mistaken) beliefs that allowing such rulings to stand will more likely than not violate a federal constitutional guarantee. But this proposal gives them a means to avoid both the outcome that they believe to be a constitutional violation as well as the need to entrench a federal constitutional pronouncement that they should know will be highly controversial and at least possibly mistaken.
22. 357 US 449 (1958).
23. See, for example, Eric A. Posner and Adrian Vermeule, Constitutional Showdowns, 156 U Pa L Rev 991, 993 (2008) (noting that institutions should practice the "active virtues" in situations "where the social benefits of clarifying the constitutional allocation of authority for future generations are large, and the countervailing costs of constitutional conflict and erroneous or premature resolution of issues are low").
24. See Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U Pa J Const L 345, 413 (2000).
25. State-law and federal-law claims will constitute a single "case" under Article III whenever they derive from a "common nucleus of operative fact." See United Mine Workers v. Gibbs, 383 US 715, 725 (1966).
26. See, for example, Ernest A. Young, Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption, 95 Cal L Rev 1775, 1799-1800 (2007) (suggesting that Supreme Court review of a state supreme court's state-law pronouncements could offend the state court's "dignity" and thus present constitutional problems).
27. See US Const Art III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.") (emphasis added).
28. See Kermit Roosevelt, III, Light from Dead Stars: The Procedural Adequate and Independent State Ground Reconsidered, 103 Colum L Rev 1888, 1895 (2003).
29. See also Harrison, 7 Green Bag 2d at 354 (cited in note 3) (noting that the Supreme Court's appellate jurisdiction over diversity cases under Article III creates an "unavoidable implication" that the Court has "appellate jurisdiction to correct errors in the application of state law by state courts," subject only to the Exceptions Clause). In a pie-Erie world, the Supreme Court might have applied general common law rather than state law when reviewing diversity cases decided by state supreme courts, but even that would extend only to a subset of such cases and would be unavailable in diversity cases governed by state statutes or local property law.
30. See Swift v. Tyson, 41 US (16 Pet) 1, 18-19 (1842).
31. See, for example, Federalist 80 (Hamilton), in The Federalist 534, 538 (Wesleyan 1961) (Jacob E. Cooke, ed).
32. See also Stewart Jay, Origins of Federal Common Law: Part Two, 133 U Pa L Rev 1231, 1267-70 (1985) (collecting statements from various Framers claiming that the federal courts would "eliminate the various forms of bias that typified state tribunals").
33. See, for example, City of Columbus v. Ours Garage and Wrecker Service, Inc, 536 US 424 (2002) (construing a statute to avoid preempting "the traditional prerogative of the States to delegate their authority to their constituent parts").
34. See, for example, Carey v. South Dakota, 250 US 118, 122 (1919) ("Where a statute is reasonably susceptible of two interpretations, by one of which it would be clearly constitutional and by the other of which its constitutionality would be doubtful, the former construction should be adopted.").
35. The Supreme Court has deployed such clear-statement requirements to advance values of state autonomy in Gregory v. Ashcroft, 501 US 452, 464 (1991),
36. and Atascadero State Hospital v. Scanlon, 473 US 234, 242 (1985).
37. The Supreme Court has recognized that its appellate jurisdiction is self-executing and does not depend on congressional authorization. See, for example, Ex parte McCardle, 74 US (7 Wall) 506, 512-13 (1868) ("[T]he appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution.");
38. United States v. Hudson & Goodwin, 11 US (7 Cranch) 32, 33 (1812) ("[T]he Supreme Court[] possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it.");
39. Durousseau v. United States, 10 US (6 Cranch) 307, 313-14 (1810) ("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 appellate powers of this court are not given by the judicial act. They are given by the constitution.").
40. See also Harrison, 7 Green Bag 2d at 354 (cited in note 3) ("Under the most natural reading of Article III, its rule concerning the original and appellate jurisdiction of the Supreme Court is self-executing.").
41. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv L Rev 2085, 2092-98 (2002) (discussing situations in which the Constitution establishes rules of interpretation).
42. 87 US (20 Wall) 590 (1874).
43. Judiciary Act of 1789, 1 Stat 73.
44. 1 Stat at 85-86. See also Jason Mazzone, When the Supreme Court Is Not Supreme, 104 Nw U L Rev *12 (forthcoming 2010), online at http://ssrn.com/abstract=1348593 (visited Apr 30, 2010) (noting how § 25 of the 1789 Judiciary Act allowed the state supreme courts to adopt expansive interpretations of federal constitutional rights "without fear of correction by the Supreme Court" and advocating a return to such a regime).
45. See William Blackstone, 3 Commentaries on the Laws of England 405 (Chicago 1979) (stating that the writ of error "only lies upon matter of law arising upon the face of the proceedings").
46. Judiciary Act of 1789 § 25, 1 Stat at 86-87 (emphasis added).
47. Early Supreme Court decisions repeatedly acknowledged the interpretive supremacy that § 25 of the 1789 Judiciary Act had conferred upon the state supreme courts, See Elmendorf v. Taylor, 23 US (10 Wheat) 152, 159 (1825) ("This Court has uniformly professed its disposition, in cases depending on the laws of a particular State, to adopt the construction which the Courts of the State have given to those laws,");
48. United States v. Morrison, 29 US (4 Pet) 124, 137 (1830) ("This court, according to its uniform course, adopts that construction of the act which is made by the highest court of the state.");
49. Webster v. Cooper, 55 US (14 How) 488, 504 (1852) (noting that the exposition of state law "belongs to the judicial department of the government of the State, and its decision is final ... and this court receives such a settled construction as part of the fundamental law of the State").
50. See Act of February 5, 1867, ch 28, 14 Stat 385. The Act was entitled: "An Act to Amend 'An Act to Establish the Judicial Courts of the United States,' Approved September TwentyFourth, Seventeen Hundred and Eighty-Nine."
51. The 1867 statute continued to exclude from the Supreme Court's review all questions of fact, all cases failing to present a federal claim, and state-court decisions upholding (rather than rejecting) federal-law claims. See Act of February 5, 1867, ch 28, 14 Stat at 386-87.
52. See Judiciary Act of 1789 § 25, 1 Stat at 86 (" [T]he Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution"), There are some other minor discrepancies between § 2 of the 1867 Act and § 25 of the 1789 Judiciary Act, but none of them has any significance for the Supreme Court's power to review state-court interpretations of state law.
53. See William M. Wiecek, Murdock v. Memphis: Section 25 of the 1789 Judiciary Act and Judicial Federalism, in Mae va Marcus, ed, Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 223, 229-34 (Oxford 1992) (discussing the legislative history of the 1867 Act).
54. 11 US (7 Cranch) 603 (1812).
55. See Hunter v. Fairfax's Devisee, 15 Va (1 Munf) 218, 237 (1810) (Fleming) (holding that Fairfax's purchasers "gave up all claim" to the disputed lands under the 1796 act of compromise); id at 232 (Roane) (holding that Fairfax's purchasers "agreed to release to the Commonwealth" all claims to the disputed lands).
56. Fairfax's Devisee, 11 US (7 Cranch) at 627; Treaty of Amity, Commerce and Navigation, between His Britannic Majesty and The United States of America (Jay's Treaty), Art IX, 8 Stat 116, 122, Treat Ser No 105 (1794) ("It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein.").
57. See Hunter v. Martin, 18 Va (4 Munf) 1, 16 (1815) (Cabell);
58. id at 22 (Brooke);
59. id at 54 (Roane);
60. id at 58-59 (Fleming).
61. See id at 49-50 (Roane).
62. See id ("[T]he actual decision of this Court was rendered upon another, and ordinary ground of jurisdiction-the act of compromise aforesaid: such a ground, as no error can be assigned on, under the proviso of the judicial act, as aforesaid, and as must forever bar the Supreme Court of the United States from acting upon the case, unless we go beyond the actual provision of the section in question.") (emphasis added). See also id at 48 (noting that on these state-law grounds, "the state courts possess the undoubted privilege even to err, without remedy").
63. Justice Johnson's dissent in Fairfax's Devisee, unlike Justice Story's majority opinion, did address the Supreme Court's jurisdiction to resolve state-law issues under § 25. See 11 US (7 Cranch) at 632 (Johnson dissenting) ("[W]henever a case is brought up to this Court under [§ 25], the title of the parties litigant must necessarily be enquired into, and that such an enquiry must, in the nature of things, precede the consideration how far the law, treaty, and soforth, is applicable to it; otherwise an appeal to this Court would be worse than nugatory.").
64. See id at 619-27 (majority).
65. See Martin v. Hunter's Lessee, 14 US (1 Wheat) 304, 323-62 (1816).
66. Id at 358 ("How, indeed, can it be possible to decide whether a title be within the protection of a treaty, until it is ascertained what that title is, and whether it have a legal validity? From the very necessity of the case, there must be a preliminary inquiry into the existence and structure of the title, before the court can construe the treaty in reference to that title."). See also Smith v. Maryland, 10 US (6 Cranch) 286, 305 (1810) ("The construction of these [state] laws, then, is only a step in the cause leading to the construction and meaning of this article of the treaty.").
67. Martin, 14 US (1 Wheat) at 357.
68. Story glided past this problem with a perfunctory sentence that criticized the state court for resting its decision on a statute that was not "spread upon the record." Id at 360 ("[I]t is somewhat difficult to understand how the court could take judicial cognizance of the [compromise] act... unless spread upon the record.").
69. See, for example, Wetherbee v. Johnson, 14 Mass (14 Tyng) 412, 417 (1817) (noting that the Supreme Court's constitutional power to assert appellate jurisdiction over state-court decisions "has been a question of much doubt and argument").
70. See also Charles E. Warren, Legislative and Judicial Attacks on the Supreme Court of the United States-A History of the Twenty-fifth Section of the Judiciary Act, 47 Am L Rev 1, 3-25 (1913) (compiling and discussing the state legislative actions and court decisions that challenged the Supreme Court's appellate jurisdiction over the state courts).
71. See Warren, 47 Am L Rev at 27 (cited in note 48) (discussing pre-Civil War proposals in Congress to repeal § 25);
72. Wiecek, Section 25 of the 1789 Judiciary Act at 228-29 (cited in note 35) (discussing a bill to repeal § 25 that failed in the House on a 138-51 vote; all but six votes in favor of the bill came from slave states).
73. Stewart v. Kahn, 78 US (11 Wall) 493, 504-07 (1870).
74. See An Act in Relation to the Limitation of Actions in Certain Cases, 13 Stat 123 (1864).
75. 73 US (6 Wall) 532 (1867).
76. Id. at 536 ("In former times the right to confiscate debts was admitted as an acknowledged doctrine of the law of nations, and in strictness it may still be said to exist,").
77. Id.
78. Id at 536-38, 542.
79. See, for example, Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modem Position, 110 Harv L Rev 815, 822-26 (1997) (noting that the law of nations had the legal status of general common law prior to Erie; it therefore failed to qualify as federal law that binds the states and could not supply a basis for federalquestion jurisdiction);
80. Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U Pa L Rev 1245, 1279-80 (1996) (noting that nineteenth-century courts "had no occasion to characterize the various branches of the law of nations as either federal or state law, At the time, it was thought to be neither").
81. 87 US (20 Wall) at 627-28 ("We are of opinion that upon a fair construction of the whole language of the section the jurisdiction conferred is limited to the decision of the [federal] questions mentioned in the statute,").
82. Id at 619: But if Congress, or the framers of the bill, had a clear purpose to enact affirmatively that the court should, consider the class of errors which that clause forbid, nothing hindered that they should say so in positive terms; and in reversing the policy of the government from its foundation in one of the most important subjects on which that body could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention. There is, therefore, no sufficient reason for holding that Congress, by repealing or omitting this restrictive clause, intended to enact affirmatively the thing which that clause had prohibited.
83. Id at 626.
84. See id at 627;
85. id at 628-29.
86. See Murdock, 87 US (20 Wall) at 618-19: No doubt there were those who, believing that the Constitution gave no right to the Federal judiciary to go beyond the line marked by the omitted clause, thought its presence or absence immaterial; and in a revision of the statute it was wise to leave it out, because its presence implied that such a power was within the competency of Congress to bestow. There were also, no doubt, those who believed that the section standing without that clause did not confer the power which it prohibited, and that it was, therefore, better omitted.
87. See, for example, Wright and Kane, The Law of Federal Courts at 792 (cited in note 5) (noting that it "seems entirely plausible that Congress intended by eliminating the proviso to open the whole case for review by the Supreme Court, if there is a federal question in the case sufficient to take the case to the Supreme Court" because that interpretation "seems wholly consistent with the temper of the times");
88. Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv L Rev 881, 920-21 n 180 (1986) ("Given Congress's mood in 1867 ... it seems unavoidable that the repeal of the restrictive sentence was designed to expand the scope of federal review; historians have agreed that such an expansion was the congressional intent.");
89. Richard A. Matasar and Gregory S. Bruch, Procedural Common Law, Federal Jurisdictional Policy, and Abandonment of the Adequate and Independent State Grounds Doctrine, 86 Colum L Rev 1291, 1319 (1986) ("The [Murdock] Court simply refused to give effect to the language of the Act" and "clearly misread Congress' intent.");
90. Charles Warren, 2 The Supreme Court in United States History 682 (Little, Brown 2d ed 1926) (noting that it was "highly probable" that Congress intended § 2 of the 1867 Judiciary Act to authorize Supreme Court review of non-federallaw issues decided by state supreme courts).
91. See Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U Pa L Rev 793, 815-16, 819 n 11 (1965) (noting "the extreme disfavor in which the Thirty-ninth Congress held the state courts").
92. See note 24.
93. McCardle, 74 US (7 Wall) at 513. See also Durousseau, 10 US (6 Cranch) at 314 ("They have not declared that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.").
94. 22 US (9 Wheat) 738 (1824).
95. See id at 821-22 (emphasis added): A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction.
96. See note 58 and accompanying text.
97. See, for example, Chevron USA. Inc v. NRDC, 467 US 837 (1984);
98. United States v. Mead Corp, 533 US 218 (2001).
99. See Chevron, 467 US at 865-66. See also Vermeule, Judging under Uncertainty at 209 (cited in note 10) (noting that administrative agencies' "specialized competence and relative accountability" give them advantages in interpreting statutes that they administer).
100. See Chevron, 467 US at 844;
101. Mead, 533 US at 226-27.
102. See, for example, FDA v. Brown & Williamson Tobacco Corp, 529 US 120 (2000) (holding that the FDA exceeded its delegated interpretive authority by regulating tobacco products as "drugs" and "devices" under the Food and Drug Act).
103. See also Quinn v. Gates, 575 F3d 651, 654 (7th Cir 2009) (Easterbrook) (citations omitted): Subject-matter jurisdiction is the authority to resolve the parties' dispute. Sometimes the ground on which this resolution occurs is that decision belongs to another governmental actor. Consider, for example, the provision exempting from the APA action "committed to agency discretion by law." That supplies a ground on which the dispute must be resolved (the agency's decision prevails) without contracting federal subject-matter jurisdiction.
104. See Murdock, 87 US (20 Wall) at 639-42 (Bradley dissenting) ("I cannot concur in the conclusion that we can only decide the Federal question raised by the record. If we have jurisdiction at all, in my judgment we have jurisdiction of the case, and not merely of a question in it.").
105. See id at 627 (majority): Let us suppose that we find that the court below was right in its decision on that question. What, then, are we to do? Was it the intention of Congress to say that while you can only bring the case here on account of this question, yet when it is here, though it may turn out that the plaintiff in error was wrong on that question, and the judgment of the court below was right, though he has wrongfully dragged the defendant into this court by the allegation of an error which did not exist, and without which the case could not rightfully be here, he can still insist on an inquiry into all the other matters which were litigated in the case? This is neither reasonable nor just. See also id at 629 (noting that there would be "no conceivable case so insignificant in amount or unimportant in principle that a perverse and obstinate man may not bring it to this court by the aid of a sagacious lawyer raising a Federal question in the record-a point which he may be wholly unable to support by the facts, or which he may well know will be decided against him, the moment it is stated").
106. See Act of June 27,1988, Pub L No 100-352, 102 Stat 662, 662-63 (expanding the Supreme Court's certiorari jurisdiction and eliminating almost all rights of appeal to the Supreme Court). See also US S Ct R10 ("Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons.").
107. See, for example, Ex parte Bain, 121 US 1 (1887);
108. Frank v. Mangum, 237 US 309, 345-50 (1915) (Holmes dissenting);
109. Johnson v. Zerbst, 304 US 458, 467 (1938) (holding that the Sixth Amendment right to counsel is an "essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty").
110. See also United States v. Cotton, 535 US 625, 630 (2002) (admitting that "[t]he Court's desire to correct obvious constitutional violations led to a somewhat expansive notion of 'jurisdiction,' which was more a fiction than anything else") (citations and quotation marks omitted).
111. See Cotton, 535 US at 631 (overruling Ex parte Bain's holding that defective indictments deprive a court of "jurisdiction").
112. See also Fisher v. Cockerell, 30 US (5 Pet) 248,259 (1831) ("As this court has never grasped at ungranted jurisdiction, so will it never, we trust, shrink from the exercise of that which is conferred upon it.").
113. See Ex parte NAACP, 91 S2d 214, 217 (Ala 1956): Review on certiorari is limited to those questions of law which go to the validity of the order or judgment of contempt, among which are the jurisdiction of the court, its authority to make the decree or order, violation of which resulted in the judgment of contempt. It is only where the court lacked jurisdiction of the proceeding, or where on the face of it the order disobeyed was void, or where procedural requirements with respect to citation for contempt and the like were not observed, or where the fact of contempt is not sustained, that the order or judgment will be quashed.
114. Id: [I]f petitioner felt itself aggrieved by the order requiring it to produce certain evidence, it should have sought to have the order reviewed by mandamus. Where a party to a cause elects not to avail of such remedies to test the validity of an order requiring him to do or refrain from doing a certain act and simply ignores or openly declines to obey the order of the court, he necessarily assumes the consequences of his defiance, and is remitted to the lone hope of having the reviewing court find and declare the order of contempt void on its face.
115. See, for example, Herb v. Pitcairn, 324 US 117, 126 (1945) ("We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.").
116. Patterson, 357 US at 455-56.
117. Id. at 460-66.
118. See, for example, Howlett v. Rose, 496 US 356, 366 (1990) (collecting authorities);
119. Wright and Kane, The Law of Federal Courts at 793-98 (cited in note 5) (same).
120. See, for example, General Motors Corp v. Romein, 503 US 181, 187 (1992) ("We 'accord respectful consideration and great weight to the views of the State's highest court,' though ultimately we are 'bound to decide for ourselves whether a contract was made.'"),
121. quoting Anderson v. Brand, 303 US 95, 100 (1938);
122. Appleby v. City of New York, 271 US 364, 380 (1926) ("[W]hether it turns on issues of general or purely local law, we cannot surrender the duty to exercise our own judgment.").
123. See Alfred Hill, The Forfeiture of Constitutional Rights in Criminal Cases, 78 Colum L Rev 1050, 1082 (1978).
124. See, for example, Field, 99 Harv L Rev at 968-70 & n 384 (cited in note 62);
125. Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv L Rev 1128, 1185 (1986).
126. To be sure, some of the Supreme Court's decisions that find state-law grounds "inadequate" to preclude review of federal-law grounds are more plausibly understood as federalpreemption holdings rather than Supreme Court reinterpretations of state law. In some cases, for example, the justices appear to reject state procedural rules on the ground that they unduly burden litigants asserting federal rights. See, for example, Davis v. Wechsler, 263 US 22 (1923);
127. Brown v. Western Railway, 338 US 294 (1949). In such cases, even if a state law clearly and explicitly established the burdensome procedural requirements, the justices might still refuse to allow such procedural rules to defeat a federal-law claim, and such a holding would necessarily rest on something in federal law that preempts the state procedural rules. But NAACP did not prohibit Alabama (or any other state) from limiting the writ of certiorari to a subset of legal errors; it objected to the Alabama Supreme Court's interpretation of the relevant state legal authorities. See note 81 and accompanying text.
128. See Wright and Kane, The Law of Federal Courts at 794-95 (cited in note 5) (collecting authorities).
129. See Patterson, 357 US at 460-66.
130. See, for example, Anderson, 303 US 95. But see United States Mortgage Co v. Matthews, 293 US 232 (1934) (reversing a state supreme court's interpretation of contractual language and thereby avoiding a conflict between the contract and a state statute that a litigant had challenged as a violation of the Contracts Clause).
131. See Erie Railroad Co v. Tompkins, 304 US 64, 78-80 (1938) ("There is no federal general common law.... [N]o clause in the Constitution purports to confer such a power upon the federal courts .... [I]n applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several states.").
132. Congress (at the time of Erie) was deemed to lack the constitutional prerogative to legislate substantive common-law rules within a state, and the justices thought it implausible to allow federal courts to exercise lawmaking powers that the Constitution had withheld from the national legislature.
133. See Erie, 304 US at 78.
134. See also Henry J. Friendly, In Praise of Erie-And of the New Federal Common Law, 39 NYU L Rev 383, 395 (1964) ("[I]t would be even more unreasonable to suppose that the federal courts have a law-making power which the federal legislature does not.... The spectacle of federal judges being able to make law without possibility of Congressional correction would not be a happy one."). Even if Congress had been understood to have near-plenary powers to displace state common-law rules, Erie recognized that separation-of-powers principles would still preclude the federal courts from creating federal general common law absent authorization from a constitutional provision or an act of Congress. See 304 US at 78 ("Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state."). This separation-of-powers principle continues to sustain the Erie doctrine even as contemporary notions of congressional power have expanded well beyond the 1938 understandings.
135. See, for example, Texas Industries, Inc v. Radcliff Materials, Inc, 451 US 630, 640 (1981) (noting that federal courts may formulate federal common law only when "Congress has given the courts the power to develop substantive law" or when "a federal rule of decision is 'necessary to protect uniquely federal interests'");
136. id at 641 ("[N]or does the existence of congressional authority under Art. I mean that federal courts are free to develop a common law to govern those areas until Congress acts."). See also Paul J. Mishkin, Some Further Last Words on Erie-The Thread, 87 Harv L Rev 1682, 1682-83 (1974):
137. [T]he Constitution bears not only on congressional power but also imposes a distinctive, independently significant limit on the authority of the federal courts to displace state law. That Congress may have constitutional power to make federal law displacing state substantive policy does not imply an equal range of power for federal judges. Principles related to the separation of powers impose an additional limit on the authority of federal courts to engage in lawmaking on their own (unauthorized by Congress).
138. Southern Pacific Co v. Jensen, 244 US 205, 222 (1917) (Holmes dissenting) ("The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.").
139. See 304 US at 72-73 (holding that federal diversity courts should "apply as their rules of decision the law of the state, unwritten as well as written");
140. id at 78 ("[W]hether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.").
141. See id at 73-77. Under pit-Erie practice, litigants sued in state court were judged by state common law, while those sued in federal diversity courts were subject to the federal general common law. This gave noncitizens significant forum-shopping advantages over in-state litigants, because the removal statute blocks in-state defendants from removing diversity cases to federal court. See id at 74-75.
142. Judiciary Act of 1789 § 34, 1 Stat at 92, codified as amended at 28 USC § 1652.
143. Erie, 304 US at 72-73.
144. See Swift, 41 US (16 Pet) at 18 ("In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws."). Swift's interpretation of the Rules of Decision Act enabled federal courts to apply federal general common law rather than state common law in contract or commercial-law disputes. See id at 18-19 (holding the Rules of Decision Act inapplicable to "the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law").
145. Warren uncovered a draft proposal in the first Congress that required federal diversity courts to apply "the Statute law of the several states in force for the time being and their unwritten or common law now in use"; he maintained that "the laws of the several states" was mere shorthand for that earlier formulation's inclusion of both statutes and judge-made common law. See Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv L Rev 49, 86 (1923) ("The meaning of this change was probably as follows: that the word 'laws of the several States' was intended to be a concise expression and a summary of the more detailed enumeration of the different forms of State law, set forth in the original draft.").
146. See Erie, 304 US at 77-78 ("If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. But the unconstitutionality of the course pursued has now been made clear, and compels us to do so.").
147. See, for example, William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv L Rev 1513, 1514-15 (1984);
148. Friendly, 39 NYU L Rev at 389 (cited in note 92).
149. Warren's argument can just as easily support the Court's pit-Erie interpretation of the Rules of Decision Act; the decision in Congress to replace the explicit reference to a state's "unwritten or common law" with the ambiguous "the laws of the several states" could indicate that legislators were unwilling to require federal diversity courts to apply state common law as rules of decision. See Field, 99 Harv L Rev at 903-04 (cited in note 62): The draft does treat statutory and common law in the same manner, but it refers only to "the statute law of the several states in force for the time being and their unwritten or common law now in use." To accept Warren's conclusion, one would have to believe that the omission of this language in the final version of the Act was only stylistic (as he maintains) with respect to the equation of statutory and common law, but not with respect to its application only to preexisting law.... Warren's reinterpretation was therefore shaky.
150. See notes 36-47 and 78-90 and accompanying text.
151. see Patterson, 357 US at 456 (collecting state-law authorities).
152. See NAACP, 91 S2d at 217,
153. which relied on Ex parte Dickens, 50 So 218, 220 (Ala 1909), to establish that the writ of certiorari is limited to certain jurisdictional or procedural errors, despite Dickens's statement that the writ of certiorari extends to "the law questions involved in the case which may affect its merits."
154. See 50 So at 220, quoting George E. Harris, A Treatise on the Law of Certiorari at Common Law and under the Statutes: Its Use and Practice § 1 at 3 (Laywer's Co-op 1893).
155. See, for example, Harrison, 7 Green Bag 2d at 356-58 (cited in note 3) (suggesting that the Supreme Court could regard the "real law of the state" as "the law as announced in [state supreme court rulings] that present no temptation to distort that law, cases that do not appear on the Article III menu," and that this would enable the justices to provide a forum for the "neutral application of settled state law" in diversity or federal-question cases).
156. See, for example, Commissioner of Internal Revenue v. Estate of Bosch, 387 US 456, 465 (1967).
157. See Rooker v. Fidelity Trust Co, 263 US 413 (1923).
158. Habeas corpus proceedings are an exception to this rule. See Brown v. Allen, 344 US 443 (1953).
159. See note 95 and accompanying text. See also Hanna v. Plumer, 380 US 460, 468 (1965) (describing the "twin aims" of the Erie doctrine as the "discouragement of forum-shopping and avoidance of inequitable administration of the laws").
160. see Frederic M. Bloom, Jurisdiction's Noble Lie, 61 Stan L Rev 971, 1030 (2009) (noting that jurisdictional doctrines often claim to be "fixed and inflexible," while still containing "pockets of pliability and places where firm rules bend").
161. See generally Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U Chi L Rev 636 (1999) (arguing that formalistic constraints on judges should be defended in terms of their overall consequences, including their effects on decision costs, error costs, and the likely performance of institutions).
162. Law Against Discrimination, NJ Stat Ann § 10: 5 (West).
163. NJ Stat Ann § 10: 5-4.
164. See Dale v. Boy Scouts of America, 734 A2d 1196 (NJ 1999).
165. See NJ Stat Ann § 10: 5-3 ("The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State.").
166. See also Rosenkranz, 115 Harv L Rev at 2139-40 (cited in note 25) (arguing that courts should generally follow such legislatively enacted interpretive instructions).
167. Dale, 734 A2d at 1210.
168. The state supreme court instead stated that the Boy Scouts organization was a "public accommodation" because it solicits participation from the public and maintains close relationships with governmental bodies. Id at 1210-13. But the Boy Scouts organization is still not a "place"; only the locations where it meets can be "places," and none of those places is open to an unselected public.
169. Id at 1210 ("A membership association ... may be a 'place' of public accommodation.").
170. In an amicus brief filed with the Supreme Court in Boy Scouts of America v. Dale, 530 US 640 (2000), New Jersey's Attorney General denied that the state supreme court's ruling would compel the Boy Scouts to admit girls because of a statutory exemption for "any place of public accommodation which is in its nature reasonably restricted exclusively to one sex."
171. See Brief of Amicus Curiae State of New Jersey in Support of Respondent, Boy Scouts of America v. Dale, No 99-699, *12-13 n 2 (US filed Mar 29, 2000) (available on Westlaw at 2000 WL 339906),
172. citing NJ Stat Ann § 10: 5-12(f). This exemption, however, applies only to a separate antidiscrimination mandate in NJ Stat Ann § 10: 5-12; it has nothing to say about the prohibitions at issue in the Boy Scouts litigation, See NJ Stat Ann § 10: 5-4.
173. Boy Scouts, 530 US 640.
174. See id at 647 (describing the right "to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends"), quoting Roberts v. United States Jaycees, 468 US 609, 622 (1984).
175. Boy Scouts, 530 US at 648.
176. Id at 657, The Court's opinion also noted that "[f]our state supreme courts and one United States Court of Appeals have ruled that the Boy Scouts is not a place of public accommodation," and that "no federal appellate court or state supreme court-except the New Jersey Supreme Court in this case-has reached a contrary result,"
177. Id at 657 n 3.
178. Boy Scouts has spawned a vast literature that includes both criticisms and defenses of the Court's opinion. Compare Andrew Koppleman, Sign of the Times: Dale v, Boy Scouts of America and the Changing Meaning of Nondiscrimination, 23 Cardozo L Rev 1819 (2002) (criticizing the Boy Scouts opinion as "sheer lunacy");
179. Jed Rubenfeld, The First Amendment's Purpose, 53 Stan L Rev 767 (2001) (rejecting Boy Scouts' "reasoning and result")
180. with Richard A. Epstein, The Constitutional Perils of Moderation: The Case of the Boy Scouts, 74 S Cal L Rev 119, 129 (2000) (defending the federal constitutional holding in Boy Scouts);
181. David E. Bernstein, Antidiscrimination Laws and the First Amendment, 66 Mo L Rev 83 (2001) (same);
182. Steffen N. Johnson, Expressive Association and Organizational Autonomy, 85 Minn L Rev 1639 (2001) (same).
183. See, for example, Virginia v. Hicks, 539 US 113, 123 (2003) (rejecting a First Amendment challenge to trespass policy, in part because it was applicable to "all persons ... not just those who seek to engage in expression");
184. Barnes v. Glen Theatre, Inc, 501 US 560, 572 (1991) (Scalia concurring) (arguing that "general law[s] regulating conduct and not specifically directed at expression [are] not subject to First Amendment scrutiny at all");
185. Oregon v. Smith, 494 US 872, 886 n 3 (1990) ("[G]enerally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling-interest analysis under the First Amendment.");
186. Clark v. Community for Creative Non-Violence, 468 US 288 (1984) (finding that generally applicable regulations prohibiting camping in certain areas of national parks did not violate First Amendment rights, even when applied to protesters requesting permits to sleep at the site of their protests);
187. United States v. O'Brien, 391 US 367 (1968) (upholding a generally applicable law banning destruction of draft cards as applied to a defendant who publicly burned his draft card in an attempt to persuade others to adopt his anti-war beliefs). See also Rubenfeld, 53 Stan L Rev at 769 (cited in note 124) (noting that "[p]eople constantly want to violate laws for expressive reasons" and that "there is no such thing as a free speech immunity based on the claim that someone wants to break an otherwise constitutional law for expressive purposes"). To be sure, the justices will at times apply heightened scrutiny when facially neutral, generally applicable laws are applied to expressive conduct because of the message that it conveys.
188. See Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L Rev 1277, 1287-94 (2005) (collecting authorities).
189. Consider, for example, the Court's holding in Cohen v. California, 403 US 15 (1971), that the First Amendment shielded a war protestor's "F - the Draft" jacket from a facially neutral and generally applicable breach-of-the-peace statute. But the New Jersey Supreme Court's conclusion that the Boy Scouts had violated the Law Against Discrimination did not depend on the expressive message that the Boy Scouts was attempting to convey; the problem was simply that it denied homosexuals access to something that the court deemed a "place of public accommodation."
190. Boy Scouts, 734 A2d at 1230.
191. See, for example, Laurence H. Tribe, Disentangling Symmetries: Speech, Association, Parenthood, 28 Pepperdine L Rev 641, 650-51 (2001) (noting the "mystery of why a neutral rule of general applicability, such as the New Jersey law against discrimination based on race, sex, or sexual orientation in institutions with a certain public character, should give way to any First Amendment objection ... simply because the rule has the incidental effect, as applied to a particular group, of interfering with its freedom of expression" and concluding that "[a]ntidiscrimination rules, it seems, furnish exceptions to that generalization");
192. Louis Michael Seidman, The Dale Problem: Property and Speech under the Regulatory State, 75 U Chi L Rev 1541, 1560 (2008) ("Perhaps, then, the Dale Court can be chastised for hypocrisy, having failed to apply its usual deference to a facially neutral law that had the effect of protecting the rights of gay men and lesbians.");
193. Rubenfeld, 53 Stan L Rev at 769 (cited in note 124) ("[T]he Scouts' First Amendment claim should have been taken no more seriously than that of a tax protestor or that of a racist employer who demanded an exemption from Title VII on the theory that he wanted to discriminate for expressive, rather than merely commercial, reasons.").
194. See Epstein, 74 S Cal L Rev at 129 (cited in note 124).
195. Boy Scouts, 530 US at 651 ("The Boy Scouts asserts that it 'teach[es] that homosexual conduct is not morally straight,' Brief for Petitioners 39, and that it does 'not want to promote homosexual conduct as a legitimate form of behavior,' Reply Brief for Petitioners 5. We accept the Boy
196. Id at 653.
197. claiming that homosexual Scoutmasters would "force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior"
198. Boy Scouts, 530 US at 648,
199. quoting Roberts, 468 US at 623 (emphasis added).
200. See, for example, Koppleman, 23 Cardozo L Rev at 1835-37 (cited in note 124).
201. See, for example, Ronald J. Allen, Constitutional Adjudication, the Demands of Knowledge, and Epistemologieal Modesty, 88 Nw U L Rev 436, 448 (1994) (arguing that the "complexity suffusing important issues" creates a "need to keep decisionmaking open").
202. Litigants have already invoked Boy Scouts to challenge the Solomon Amendment's denial of federal funding to academic institutions that deny military recruiters access to their campuses, see Rumsfeld v. Forum for Academic and Institutional Rights, 547 US 47 (2006), to challenge extensive border searches against entrants who attended Islamic conferences in Canada,
203. see Tabbaa v. Chertoff, 509 F3d 89 (2d Cir 2007), and to assert that public schools must recognize student organizations with restrictive membership criteria,
204. see Christian Legal Society v. Martinez, 130 S Ct 2971 (2010).
205. Boy Scouts, 530 US at 652 ("That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.").
206. See, for example, Richard A. Posner, Pragmatism versus Purposivism in First Amendment Law, 54 Stan L Rev 737, 749 (2002) (stating that Boy Scouts v. Dale "was decided incorrectly" because "laws against discrimination would be ineffectual if discrimination that was based on opinion-which much, maybe most, discrimination is based on-were constitutionally privileged").
207. See, for example, Roberts, 468 US at 623 ("We are persuaded that Minnesota's compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members' associational freedoms.");
208. Bob Jones University v. United States, 461 US 574, 604 (1983) (asserting that the government has a "compelling" interest in eradicating racial discrimination in education, which "outweighs" burdens on the University's First Amendment rights).
209. 137 530 US at 659 ("The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts's rights to freedom of expressive association.").
210. 468 US 609 (1984).
211. Id at 622.
212. See also John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 Tenn L Rev 485, 558 (2010).
213. Bouie v. City of Columbia, 378 US 347, 349 n 1 (1964) (emphasis added), quoting SC Code § 16-386 (Michie 1952 & Supp 1960).
214. See City of Columbia v. Bouie, 124 SE2d 332 (SC 1962).
215. The Ex Post Facto Clause applies only to state legislatures. See US Const Art I, § 10 ("No State shall... pass any ... ex post facto law."). See also Marks v. United States, 430 US 188, 191 (1977) (stating that the Ex Post Facto Clause "is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government"). And the Court acknowledged that the South Carolina trespass statute was "admirably narrow and precise" and could not be void for vagueness. Bouie, 378 US at 351.
216. Bouie, 378 US at 350.
217. Id at 354.
218. See, for example, Webster v. Woodford, 369 F3d 1062 (9th Cir 2004) (rejecting a habeas corpus petitioner's due-process challenge to a state court's interpretation of California's robbery statute).
219. See also Hunter v. United States, 559 F3d 1188, 1190 (11th Cir 2009) (refusing to issue a certificate of appealability for a postconviction due-process challenge to a trial court's erroneous interpretation of a statutory sentencing enhancement), vacd and remd, 130 S Ct 1135 (2010).
220. Federal habeas relief is unavailable for mere errors of state law. See Lewis v. Jeffers, 497 US 764, 780 (1990).
221. See, for example, Rogers v. Tennessee, 532 US 451 (2001) (refusing, by a 5-4 vote, to extend Bouie to the Tennessee Supreme Court's decision to abolish the common-law rule that precluded a murder conviction when the victim lived more than a year and a day after the attack).
222. More than five hundred people describing themselves as "teachers whose lives have been dedicated to the rule of law" signed a letter accusing the five justices in the Bush v. Gore majority of "acting as political proponents for candidate Bush, not as judges."
223. See 554 Law Professors Say, NY Times A7 (Jan 13, 2001) (advertisement attributed to Law Professors for the Rule of Law).
224. See, for example, David A. Strauss, Bush v. Gore: What Were They Thinking?, 68 U Chi L Rev 737, 738 (2001).
225. See Fla Stat Ann § 102.111 (1) (West 2000).
226. See Fla Stat Ann §§ 102.112 (1), 102.166 (1), 102.166 (4)(a).
227. See Fla Stat Ann § 102.166 (4)(c).
228. See also Broward County Canvassing Board v. Hogan, 607 S2d 508, 510 (Fla App 1992) ("The statute clearly leaves the decision whether or not to hold a manual recount of the votes as a matter to be decided within the discretion of the canvassing board.").
229. Fla Stat Ann § 102.166 (5)(a)-(c).
230. See Fla Stat Ann § 102.112 (1).
231. See Fla Stat Ann § 102.111 (1).
232. Fla Stat Ann § 102.168 (1) ("[T]he certification of election or nomination of any person to office ... may be contested in the circuit court by any unsuccessful candidate for such office or nomination.").
233. 772 S2d 1220 (Fla 2000).
234. The court declared that the secretary could enforce the seven-day certification deadline "only if the returns are submitted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida's voters from participating fully in the federal electoral process." Id at 1239.
235. Fla Stat Ann § 97.012 (giving the Secretary of State responsibility to "[o]btain and maintain uniformity in the application, operation, and interpretation of the election laws").
236. The secretary had valid reasons for ignoring the late manual recounts. Including them could bias the certified results by including hand counts from heavily Democratic counties while entirely excluding undervotes from more Republican-leaning counties in the state. And there were reasons to doubt the accuracy and integrity of the manual recounts; the Broward County Canvassing Board counted dimpled chads as votes (even on ballots where the voter punched through chads for nonpresidential candidates), see Mike Williams, Florida Names Bush Winner as He Asks Gore to Halt Fight, Atlanta Journal-Const Al (Nov 27, 2000), and the Palm Beach County Canvassing Board changed its treatment of dimples multiple times throughout its manual recount,
237. see Lynette Holloway and Rick Bragg, Tempers Flare as Broward Recount Plods On, NY Times A1 (Nov 24, 2000).
238. In the Florida Supreme Court's words: [L]ogic dictates that the period of time required to complete a full manual recount may be substantial, particularly in a populous county, and may require several days. The protest provision thus conflicts with section 102.111 and 102.112, which state that the Boards "must" submit their returns to the Elections Canvassing Commission by 5:00 p.m. of the seventh day following the election or face penalties. For instance, if a party files a precertification protest on the sixth day following the election and requests a manual recount and the initial manual recount indicates that a full countrywide recount is necessary, the recount procedure in most cases could not be completed by the deadline in sections 102.111 and 102.112, i.e., by 5:00 p.m. of the seventh day following the election. Palm Beach County Canvassing Board, 772 S2d at 1233.
239. See note 159. Akhil Amar has defended the Florida Supreme Court's actions in the recount litigation by suggesting that the Florida legislature implicitly delegated authority to the Florida judiciary to construe liberally the state's election statutes. See Akhil Reed Amar, Bush, Gore, Florida, and the Constitution, 61 U Fla L Rev 945, 953-56 (2009). That view is hard to square with the provision of Florida's election code that explicitly delegated interpretive authority over Florida's election statutes to the secretary of state. See note 159. Nor is it plausible to believe that legislation that establishes a deadline implicitly delegates power to the state's courts to replace it with a deadline of their own choosing; implied delegations exist only when a statute contains ambiguity.
240. See, for example, Chevron U.S.A. Inc v. NRDC, 467 US 837 (1984).
241. See also United States v. Locke, 471 US 84, 89-90, 93-96, 98-100 (1985) (holding that a statute requiring certain documents to be filed "prior to December 31" precludes courts from accepting documents filed on December 31, even for litigants who acted in good faith and mistakenly construed the statute to mean that they could "wait[] until December 31 to submit" their documents).
242. See Palm Beach County Canvassing Board, 772 S2d at 1239 ("Because the right to vote is the preeminent right in the Declaration of Rights of the Florida Constitution, the circumstances under which the Secretary may exercise her authority to ignore a county's returns filed after the initial statutory date are limited.");
243. id at 1240 ("[T]o allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory Board members . . . misses the constitutional mark.").
244. 531 US 70 (2000).
245. Id at 78.
246. See Fla Stat Ann § 103.011 (West 2000).
247. 773 S2d 524 (Fla 2000).
248. See id at 526 ("The 'intent of the voter' standard adopted by the Legislature was the standard in place as of November 7,2000, and a more expansive ruling would have raised an issue as to whether this Court would be substantially rewriting the Code after the election, in violation of article II, section 1, clause 2 of the United States Constitution and 3 U.S.C. § (1994).").
249. 531 US 98 (2000).
250. Fl Stat Ann § 02.168(3)(c).
251. Fl Stat Ann § 02.168(8).
252. See, for example, Bush v. Gore, 531 US at 118 (Rehnquist concurring);
253. Richard A. Epstein, "In Such Manner as the Legislature Thereof May Direct": The Outcome in Bush v. Gore Defended, 68 U Chi L Rev 613, 629-34 (2001);
254. Michael W. McConnell, Two-and-a-Half Cheers for Bush v. Gore, 68 U Chi L Rev 657, 68-69 (2001);
255. Richard A. Posner, Bush v. Gore: Prolegomenon to an Assessment, 68 U Chi L Rev 719, 28-32 (2001).
256. Chief Justice Wells's dissenting opinion criticized the majority for its unexplained refusal to include overvotes in the statewide recount, yet the majority did not deign to reply. See Gore v. Harris, 772 S2d at 1264 n 26 (Wells dissenting).
257. See Bush v. Gore, 531 US at 105-12.
258. See note 168 and accompanying text.
259. See, for example, Amar, 61 U Fla L Rev at 962 (cited in note 162).
260. See Bush v. Gore, 531 US at 109.
261. See note 173 and accompanying text.
262. See Bush v Gore, 531 US at 109 ("Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.").
263. See, for example, Coleman v Franken, 767 NW2d 453 (Minn 2009) (resolving a contest to a US Senate election that relied, in part, on Bush v Gore);
264. League of Women Voters of Ohio v Brunner, 548 F3d 463, 477-78 (6th Cir 2008) (allowing litigants to pursue a Bush v Gore challenge to Ohio's voting system);
265. Black v McGuffage, 209 F Supp 2d 889, 898 (ND 111 2002) (noting that the "rationale behind" Bush v Gore allowed litigants to state an equal-protection claim when a state used "different types of voting equipment with substantially different levels of accuracy").
266. See also Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 Stan L Rev 1,5 (2007) ("Bush v. Gore's main legacy has been to increase the amount of election-related litigation.").
267. Bush v Gore, 531 US at 129 (Stevens dissenting).
268. See, for example, Strauss, 68 U Chi L Rev at 756 (cited in note 147);
269. Cass R. Sunstein, Order without Law, 68 U Chi L Rev 757,759 (2001);
270. Laurence H. Tribe, The Unbearable Wrongness of Bush v. Gore, 19 Const Comment 571, 574 (2002);
271. Michael J. Klarman, Bush v. Gore through the Lens of Constitutional History, 89 CaI L Rev 1721,1723 (2001). Some law clerks from the Supreme Court's October Term 2000 believed that the Bush v Gore decision was so lawless that it released them from their obligations of confidentiality to the Court.
272. See David Margolick, Evgenia Peretz, and Michael Shnayerson, The Path to Florida, Vanity Fair 310, 320 (Oct 2004) (quoting an anonymous law clerk who rationalized his actions as follows: "We feel that something illegitimate was done with the Court's power, and such an extraordinary situation justifies breaking an obligation we'd otherwise honor .... Our secrecy was helping to shield some of those actions.").
273. The per curiam opinion defended its refusal to order a new recount by claiming that Florida wanted to satisfy a safe-harbor provision in the Electoral Count Act, 3 USC §5, which would immunize Florida's electors from congressional challenge if finally determined on or before December 12, 2000. Because the Supreme Court issued its decision shortly before midnight on December 11, there was insufficient time to complete a constitutional recount before the safe-harbor date. Yet nothing in Florida's election code established the December 12 safeharbor date as a mandatory deadline for resolving presidential election disputes. The justices inferred this supposed requirement of state law from statements in Florida Supreme Court opinions, but even those opinions never went so far as to suggest that state law would forbid recounts that extend beyond that federal safe-harbor date.
274. See Gore v Harris, 773 S2d at 528-29 (Shaw concurring) ("December 12 was not a 'drop-dead' date under Florida law.... It certainly was not a mandatory contest deadline under the plain language of the Florida Election Code (i.e., it is not mentioned there) or this Court's prior rulings.").
275. See BMW v Gore, 646 S2d 619,627 (Ala 1994) ("[T]his jury could not use the number of similar acts that a defendant has committed in other jurisdictions as a multiplier when determining the dollar amount of a punitive damages award. Such evidence may not be considered in setting the size of the civil penalty, because neither the jury nor the trial court had evidence before it showing in which states the conduct was wrongful.").
276. See id at 629.
277. 517 US 559 (1996).
278. Id at 574.
279. Id at 574-75,583.
280. Id at 599 (Scalia dissenting).
281. BMW, 517 US at 602-07;
282. id at 612 (Ginsburg dissenting) ("Tellingly, the Court repeats that it brings to the task no 'mathematical formula,' no 'categorical approach,' no 'bright line.' It has only a vague concept of substantive due process, a 'raised eyebrow' test, as its ultimate guide.").
283. Id at 605-07 (Scalia dissenting).
284. Green Oil Co v Hornsby, 539 S2d 218,222 (Ala 1989).
285. See, for example, Dred Scott v Sandford, 60 US (19 How) 393 (1857);
286. Lochner v New York, 198 US 45 (1905).
287. See, for example, John Harrison, Substantive Due Process and the Constitutional Text, 83 Va L Rev 493 (1997);
288. Henry P. Monaghan, Our Perfect Constitution, 56 NYU L Rev 353, 353-60 (1981);
289. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 18 (Harvard 1980).
290. See, for example, David A. Strauss, Common Law, Common Ground, and Jefferson's Principle, 112 Yale L J 1717,1733-35 (2003) ("Every time the [Constitution's] text is ignored or obviously defied, its ability to serve as common ground, as a focal point, is weakened . . . It may be that if one person cheats, by failing to follow the text, others are more likely to cheat too, and soon the ability of the text to coordinate behavior will be lost, to everyone's detriment.").
291. The Bush administration's legal memoranda provide abundant examples of this. See, for example, DOJ, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan 19, 2006), online at http://www.usdoj.gov/opa/whitepaperonnsa legalauthorities.pdf (visited Feb 7, 2010);
292. DOJ, Office of Legal Counsel, Office of the Assistant Attorney General, Memorandum for Alberto R, Gonzales, Counsel to the President: Re: Standards of Conduct for Interrogation under 18 USC. §§2340-2340A (Aug 1, 2002), online at http://www.washingtonpost.com/wp-srv/politics/documents/cheney/ torture-memo-aug2002.pdf (visited Feb 7,2010).
293. Green Oil, 539 S2d at 222. Alabama law also requires courts to consider seven factors when determining whether punitive damages are excessive. These include: (1) the relationship between the amount of punitive damages and the actual or likely harm from the defendant's conduct; (2) the degree of reprehensibility of the defendant's conduct; (3) whether the defendant profited from the wrongful conduct; (4) the financial position of the defendant; (5) the costs of litigation; (6) whether criminal sanctions have been imposed on the defendant; and (7) whether other civil actions have been filed against the same defendant based on the same conduct. See id at 223-24.
294. See note 197.
295. 444 US 286 (1980).
296. Id at 291.
297. 376 US 254 (1964).
298. See Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U Chi L Rev 782, 790,793-94, 816 & n 55 (1986) (noting that the Alabama Supreme Court's decision had misapplied state defamation law, including a state statute that denied a public officer recovery of punitive damages in a libel action regarding his official conduct unless he first made a written demand for a public retraction and the defendant failed or refused to comply, and that the plaintiffs failed to show actual damages).
299. 129 S Ct 2252 (2009).
300. Id at 2257.
301. See, for example, Epstein, 53 U Chi L Rev at 808-11 (cited in note 202) (noting how the "actual malice" test that the justices announced in New York Times v Sullivan has increased litigation costs in defamation cases).
302. 347 US 483 (1954).
303. See Parents Involved in Community Schools v Seattle School District No 1, 551 US 701, 798-99 (2007) (Stevens dissenting) (denouncing the "cruel irony" in the Court's reliance on Brown and accusing the majority of "rewriting] the history of one of this Court's most important decisions").
304. See 531 US at 109.
305. See note 180 and accompanying text.
306. See, for example, Richard A. Posner, Law, Pragmatism, and Democracy 347 (Harvard 2003) (noting that some justices in the Bush v Gore majority have "urg[ed] a concept of adjudication that is inconsistent with the majority opinion that they joined");
307. Strauss, 68 U Chi L Rev at 740 (cited in note 149) (acknowledging that the Court's equal-protection holding was "not entirely implausible" but describing it as "wildly out of character" for the justices who joined the majority opinion).
308. See note 125 and accompanying text.
309. See Elster, 2 U Pa J Const L 345 (cited in note 15) (describing how the "civilizing force of hypocrisy" induces even self-interested actors to want to appear impartial and principled).
310. 487 US 815 (1988).
311. Id at 818-38 (Stevens) (plurality).
312. Id at 848-49 (O'Connor concurring).
313. Id at 858-59 ("[T]he approach I take allows the ultimate moral issue at stake in the constitutional question to be addressed in the first instance by those best suited to do so, the people's elected representatives.").
314. See Learned Hand, The Spirit of Liberty, in Irving Dillard, ed, The Spirit of Liberty: Papers and Addresses of Learned Hand 189,190 (Knopf 1953).
315. See also Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 Fordham L Rev 1269,1292 (1997) ("I am confident that an essential element of responsible judging is a respect for the opinions and judgments of others, and a willingness to suspend belief, at least provisionally, in the correctness of one's own opinions.").
316. See Vermeule, Judging under Uncertainty at 118-48 (cited in note 10) (criticizing theories of adjudication that require sustained judicial coordination in order to achieve the systemic benefits that they purport to advance).
317. See, for example, Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small 20-21,70 (Oxford 2007) (criticizing "self-defeating proposals," in which "the diagnosis and prescription make different assumptions about relevant features of the relevant actors").
318. See, for example, Adrian Vermeule, Law and the Limits of Reason 74-75 (Oxford 2009).
319. Field, 99 Harv L Rev at 921 (cited in note 62) ("It is thus because of Murdock that the whole concept of state law as distinct from federal law is a meaningful one.").
320. See notes 78-90 and accompanying text.
321. See Ernest A. Young, Institutional Settlement in a Globalizing Judicial System, 54 Duke L J 1143,1191 (2005) ("The trick, then, is to allow enough federal oversight to foreclose hostile state courts from manipulating state law to thwart federal rights, but not so much federal secondguessing as to eliminate state court supremacy over state law.").
322. See, for example, Field, 99 Harv L Rev at 922 (cited in note 62) (describing Murdock as part of the "well-established foundation of the system on which many of our suppositions concerning federalism have been built");
323. Young, 54 Duke L J at 1191 (cited in note 223) (describing Murdock and the state courts' interpretive supremacy over state law as "one of the pillars of our federalism").
324. See also Kansas v Marsh, 548 US 163,184 (2006) (Scalia concurring) ("When state courts erroneously invalidate actions taken by the people of a State ... on state-law grounds, it is generally none of our business; and our displacing of those judgments would indeed be an intrusion upon state autonomy.");
325. William J. Brennan, Jr, The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 NYU L Rev 535, 550-52 (1986);
326. David L. Shapiro, Federalism:A Dialogue 1-3 (Northwestern 1995).
327. But see Cooper v Aaron, 358 US 1 (1958) (holding that the Supremacy Clause binds state officials to follow the Supreme Court's interpretations at federal constitutional provisions). The Supremacy Clause extends only to the Constitution, federal statutes made in pursuance thereof, and treaties made under the authority of the United States; it omits any reference to state law or to Supreme Court rulings. See US Const Art VI.
328. See, for example, ASARCO Inc v Kadish, 490 US 605 (1989).
329. See Conference of Chief Justices, Resolution Relating to Proposed Legislation to Restrict the Jurisdiction of the Federal Courts (Jan 30,1982), reprinted in 128 Cong Rec S 869 (Feb 4, 1982) (declaring that state-court judges have an "obligation[] to give full force to controlling Supreme Court precedents," and that if Congress were to enact legislation that repeals the Supreme Court's appellate jurisdiction over abortion-related controversies, the Supreme Court's earlier pronouncements "would remain the unchangeable law of the land, absent constitutional amendments, beyond the reach of the United States Supreme Court or state supreme courts to alter or overrule").
330. See, for example, Edwin Meese, III, The Tulane Speech: What I Meant, 61 Tulane L Rev 1003,1003 (1987) (conceding that Supreme Court decisions "have general applicability" and that "[i]n addition to binding the parties in the case at hand, a decision is binding precedent on lower federal courts as well as state courts").
331. See, for example, Act of December 23,1914, ch 2, 38 Stat 790;
332. Act of June 27,1988 §3, 102 Stat at 662.
333. See generally Flood v Kuhn, 407 US 258 (1972);
334. Adrian Vermeule, Interpretive Choice, 75 NYU L Rev 74,143-45 (2000) (advocating an absolute rule of statutory stare decisis).
335. 304 US 64 (1938) (overruling the longstanding interpretation of the Rules of Decision Act, 28 USC §1652).
336. 344 US 443 (1953).
337. See, for example, Leegin Creative Leather Products, Inc v PSKS Inc, 551 US 877 (2007) (overruling a longstanding interpretation of the Sherman Antitrust Act).
338. See Eric A. Posner and Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L J 1665,1679-80 (2002) (noting that the Supreme Court regularly "dump[s] traditional practices overboard when their claims on our rational or normative allegiance wear too thin").
339. See, for example, State Oil Co v Khan, 522 US 3, 20 (1997) (recognizing that statutory stare decisis may be overcome by the interest in "recognizing and adapting to changed circumstances and the lessons of accumulated experience").
340. See Edmund Burke, Reflections on the Revolution in France 74 (Yale 2003) (Frank Turner, ed) (originally published 1790).
341. For efforts to apply Burkean thought to Supreme Court decisionmaking, see Cass R. Sunstein, Burkean Minimalism, 105 Mich L Rev 353, 353 (2006);
342. David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 894 (1996);
343. Ernest A. Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 NC L Rev 619,688-697 (1994).
344. See Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum L Rev 1482,1486-87 (2007) (describing these two different strands of Burkean thought).
345. See notes 75-77 and accompanying text.
346. See Vermeule, 107 Colum L Rev at 1498-99 & n 53 (cited in note 237) (describing the "Burkean paradox," which arises when judges rely on a precedent to reduce the costs of information gathering and decisionmaking, but in doing so the practice becomes less likely to reflect the accumulated wisdom of many independent minds over time or to contain any epistemic value).
347. See cases cited in note 6. See also Ex parte Randolph, 20 F Cases 242, 254 (CC Va 1833) (Marshall) ("[I]f the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed.").
348. See, for example, Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale L J 399, 416-17 (2001) (noting that stare decisis can cause judges to "reason impartially if they anticipate that the decision may be invoked in future cases whose valence in terms of the decisionmakers' future interests is unpredictable");
349. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv L Rev 1 (1959) (arguing that constitutional adjudication "must rest on reasoning and analysis that transcend the immediate result").
350. Boy Scouts of America v Dale, 530 US 640,657 (2000).
351. Vermeule, Mechanisms of Democracy at 93 (cited in note 219). See also Gerald Günther, The Subtle Vices of the "Passive Virtues"-A Comment on Principle and Expediency in Judicial Review, 64 Colum L Rev 1 (1964).