Legal Commentary

For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here).  I guess between the Sotomayor nomination, the Prop 8 ruling, and the Supreme Court's overruling of Michigan v. Jackson, we fed courts geeks get left behind...

But before the decision fades into obscurity, I wanted to flag the one thing about it that I found noteworthy -- Part II of Justice Thomas's dissent.

By way of introduction, the issue in Haywood is a classic fed courts problem: Under New York law, the State substitutes itself as the defendant in any damages action against a corrections officer brought in the New York state courts.  But because states cannot be defendants to claims under 42 U.S.C. 1983, the New York law has the effect (although not the purpose) of barring a certain subset of 1983 claims from the state courts. The question presented was whether, as such, the New York law in question violates the Supremacy Clause (the New York Court of Appeals said no, albeit in a sharply divided 4-3 ruling).

For the majority, Justice Stevens reversed, concluding that the New York law is not a neutral jurisdictional rule, and therefore violates the antidiscrimination principle set out in the Court's prior precedents (e.g., Testa v. Katt), pursuant to which states may not discriminate against federal question suits.  Justice Thomas dissented, and in the only part in which he was joined by the other three dissenters (the Chief Justice and Justices Scalia and Alito), he argued for why he believes New York's statute was "neutral," disagreeing with the majority's application of precedent.

More interesting, though, is Part II of Justice Thomas's dissent (in which he was writing only for himself).  Leaving aside his disagreement over the application of precedent, Justice Thomas apparently takes issue with the Court's entire jurisprudence in the field, arguing that "There is no textual or historical support for the Court?s incorporation of this antidiscrimination principle into the Supremacy Clause." He then proceeds to devote half of his 37-page dissent (to a 12-page majority opinion) to explaining why "The supremacy of federal law . . . is not impugned by a State?s decision to strip its local courts of subject-matter jurisdiction to hear certain federal claims." Put another way, Justice Thomas sees no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts, even when the same state courts are open to comparable claims under state law.

To me, this is a startling argument. Reasonable people will disagree about whether state courts ever have to hear any class of federal question lawsuits without respect to their jurisdiction over comparable state-law claims, and the Supreme Court has assiduously avoided answering that question. But to suggest that states are free to discriminate against federal question lawsuits under almost any circumstance is to turn the Madisonian Compromise on its head, and to invert the Founders' unquestioned belief that state courts, rather than the lower federal courts, would be the more frequent and reliable adjudicator of federal questions.

I often get in trouble with some of my friends because I find deep principles behind a lot of Justice Thomas's jurisprudence, even when I fundamentally disagree with the assumptions behind those principles.  Here, though, I'm not sure what the deep principle is, other than an absolute defense of state autonomy at the expense of the supremacy of federal law... If anything, though, such an absolutist view is actually demeaning to state courts, because it undermines the significant role they were always meant to play in interpreting federal law -- just so long as they came to the federal law neutrally.