The Roberts Court and the State Courts

Jason Mazzone

Thank you to Jack for inviting me to blog here. I teach Constitutional Law, American Legal History, and Intellectual Property Law, and I will mostly post on topics in those areas.

For the past three years, I have been working on several interrelated projects examining the role of state courts in applying federal law. Since Justice Brennan’s 1977 Harvard Law Review article on “State Constitutions and the Protection of Individual Rights,” there has been a lot of academic attention to state court interpretations of state constitutional provisions. How state courts apply federal constitutional and statutory law has been less studied. I will discuss some of my past work on this issue in future posts.

My current project involves research on patterns of Supreme Court review of state court decisions. I am compiling detailed information on such things as how many cases from the state courts the Supreme Court has decided since 1790; how reversal rates have varied over time; which kinds of federal issues the Court has reviewed and how the types of cases have changed over time; which state courts have been reviewed most often; and the Court’s voting patterns in deciding cases on review from the state courts.

With the Roberts Court now at five years there is enough data to draw some conclusions and make some predictions about its orientation towards state courts. The bottom line is that compared to its predecessors, the Roberts Court is reviewing fewer cases from the state courts but reversing a higher percentage of them. In other words, the Roberts Court is intervening only to correct the most serious errors by the state courts.

The number of cases the Supreme Court hears from the state courts has been dropping for a while. From 1950 to 1990, the Court averaged about 37 cases per term from the state courts (about 25% of the Court’s docket). From 1990 to the 2004 term, the Court averaged about 15 cases from the state courts. If we look at just the last five terms of the Rehnquist Court, it heard an average of 14 cases per term from the state courts.

So far, the Roberts Court has heard an average of only about 11 cases per term from the state courts. And it is reversing at a higher rate than in the past. From 1990 to 2004, the Court reversed on average two-thirds of the state court cases it heard. If we take just the last five years of the Rehnquist Court, the reversal rate was about 70% per term. The Roberts Court has, over its first five terms, reversed on average 77% of the state court cases it has reviewed. And if we take out the 2005 term—in which the Roberts Court inherited cases from the Rehnquist Court—and look just at the most recent four terms, the trend is even more striking. During the past four terms, the Roberts Court has heard about 10 cases from the state courts per term, reversing on average 84% of the cases it has reviewed.

Last term on direct review, the Supreme Court decided just eight cases from the state courts (plus one case, Sullivan v. Florida, which was dismissed as improvidently granted, and Briscoe v. VA, which was vacated after oral argument). Even though state courts decide far more cases than the federal courts, the Supreme Court took fewer cases last term from all of the state courts combined than it did from some single circuits (the 7^th, the 9^th, and the 11^th). State courts last term on direct review did very badly. Every decision of a state court the Supreme Court heard was reversed or vacated, with one exception: Stop the Beach Renourishment v. Florida Department of Environmental Protection (rejecting the doctrine of judicial takings).

There was also a high degree of concurrence among the justices with respect to the state court cases. Two cases were unanimous. Four were decided 7-2. One was 6-3. And just one case, Sears v. Upton, was 5-4. In other words, state courts that were reviewed got the law wrong by a broad consensus of the Supreme Court.

All of the state court cases last term were criminal cases except for Stop the Beach Renourishment, the only civil case, and the only affirmance. Of the criminal cases, just three decisions reversed state courts that ruled in favor of criminal defendants: Maryland v. Shatzer (allowing police to resume questioning after a break in custody), Michigan v. Fisher (police could rely upon the emergency aid exception to the Fourth Amendment warrant requirement when they saw in a home an individual with a cut on his hand who was threatening others), and Florida v. Powell (Miranda warning that did not specifically advise of the right to have a lawyer present during questioning is adequate). The other criminal cases the Supreme Court decided end up being more protective of criminal defendants than was the state court.

Besides direct review, the Supreme Court also reviews indirectly the decisions of state courts by habeas review. The Court last term heard fifteen habeas cases (i.e. nearly double the number of the cases it heard on direct review) involving state court convictions or sentences. In the majority of the habeas cases, the Court affirmed what the state court had done and reversed a lower federal court granting the petitioner relief. In just two cases last term, the Court ruled in clear favor of a habeas petitioner: Magwood v. Patterson (holding that a petition challenging a new sentence after winning habeas relief is not a second or successive petition) and Porter v. McCollum (holding unanimously in a death penalty case that a lawyer who failed to bring forth evidence about the defendant’s war record was ineffective under Strickland). The Court also showed a high degree of consensus in the habeas cases reviewing state court convictions and sentences. Just three cases were decided 5-4. And eight of the cases, more than half, were decided 9-0 (though of those, six were by summary reversal).

There has been much speculation about whether the Roberts Court will continue the Rehnquist Court’s federalism revolution, which centered upon protecting state legislatures and state executives. While it is too early to draw firm conclusions, so far at least the Roberts Court has not demonstrated a strong commitment to extending the Rehnquist Court’s own federalism decisions. However, whether by accident or by design, something important may be happening with respect to the relationship between the Supreme Court (and by extension the federal judiciary more generally) and the state courts.

As measured by its review and reversal rates, the Roberts Court is showing remarkable deference to the state courts on issues of federal law. The revolution might be taking a new form.

In future posts, I'll discuss some implications of this development.
Posted 2:30 PM by Jason Mazzone [link]