What a Recent In-Chambers Order by Justice Scalia Illustrates About the Supreme Court

In a recent court order issued from his chambers that garnered attention in the legal blogosphere but not in the mainstream media, Justice Antonin Scalia stopped immediate enforcement of a Louisiana state appellate court ruling requiring several major tobacco companies to pay more than $240 million to fund a state program to help smokers quit the habit.

The Louisiana court ruling came in a lawsuit filed on behalf of all smokers who live in that state. The case is a class action filed under Louisiana state class-action procedural law, rather than under federal class-action law. The smokers allege that the companies violated Louisiana’s civil fraud law by distorting public and scientific knowledge about the addictive properties of nicotine.

In Louisiana as in most states, the claim of fraud in a civil lawsuit normally requires proof that the plaintiff relied, to his or her detriment, on the defendant’s misrepresentations. But in this case, the Louisiana appellate court ruled that class lawsuits alleging fraud are exceptions to that rule; under Louisiana class-action law, the class does not have to prove detrimental reliance on the part of the members of the class. So the smokers in this case had to prove only that the companies lied about whether the great body of scientific research showed conclusively that nicotine is highly addictive. Which they proved.

The companies asked the Louisiana Supreme Court to hear the case, claiming numerous violations of their constitutional right to due process of law, including that the right to “an opportunity to present every available defense.” Specifically, here, the defense that the smokers did not rely on the distortions of scientific fact. The companies asked the Louisiana Supreme Court to hear the case in order to decide (among other things) whether states can change the normal substantive or procedural requirements for proving the claim alleged, simply because the case is a class lawsuit rather than on in which one or just a few people are suing. The state supreme court declined to hear the case.

Under the Supreme Court’s procedural rules, once a state’s highest court has refused to hear a case, or a lower federal appellate court has issued a ruling, the losing party can ask a single justice to put the lower court’s ruling on hold while the party has a chance to ask the Supreme Court to hear the case. Each of the justices is assigned to one or two regions of country for purposes of considering such requests. Scalia is assigned to the region in which Louisiana is located. The tobacco companies asked him to “stay” the Louisiana state court’s ruling until sometime next winter or spring, when the Court decides whether it will grant the companies’ by-then-filed request to hear the case.

As Scalia acknowledges in granting the stay, these requests are almost never granted. The party requesting it must convince the justice that there is a reasonable probability that Court will decide that that case will be among the roughly 70 cases the justices will hear that annual term; the Court receives approximately 9,000 petitions a year. The party must also show a significant possibility that the Court, once it agrees to hear the case, will reverse the lower-court ruling, and that irreparable harm will result if the lower-court ruling is enforced before the Court decides the case. And even then, Scalia said, repeating language he wrote in another ruling on another such request 20 years ago, “sound equitable discretion will deny the stay when ‘a decided balance of convenience’” weighs against it. The internal quote is from a 1923 opinion in a case in which, presumably, the irreparable harm that resulted when the lower-court ruling was enforced before the Court decided the case did not trump the inconvenience caused by the stay.

For all the high hurdles Scalia says the tobacco companies had to scale in order to persuade him to issue the stay, what’s striking is not that he thinks they scaled them but rather why he thinks they did. He cites as sufficiently important the issue of “[t]he extent to which class treatment may constitutionally reduce the normal requirements of due process. He also cites what he says is “[n]ational concern over abuse of the class-action device” and says thus national concern “induced Congress” to allow most major class actions—but not this lawsuit, because the smokers all are residents of a single state— to be litigated in federal court so that these lawsuits “would be subject to important procedural limitations.” And he says that, because this particular case had to be litigated in state court under state laws, the tobacco companies will have no opportunity to have any federal court hear their claims that a state court violated the companies’ federal constitutional rights.

“T]he constraints of the Due Process Clause will be the only federal protection” against violations of the companies’ due process rights by the state courts, he says, sounding appalled.

Unless, that is, the Supreme Court agrees to hear the case. The Supreme Court should, and probably will, agree to hear the case, he says, because, well, otherwise “the constraints of the Due Process Clause will be the only federal protection” against violations of the companies’ due process rights by the state courts. He sounds appalled.

Which is itself notable. Whether the federal legislation enacted earlier this decade that allows defendants in most class actions to have the case litigated in federal rather than state court, and that indeed places to important procedural limitations on class lawsuits—limitations that make it, let’s say, challenging to litigate the case as a class action at all—or whether instead the legislation was the culmination of intense lobbying efforts by business groups, the admission by a Supreme Court justice that the extent to which a state may constitutionally reduce the normal requirements of due process in any particular type of case (or in any one case at all) depends, as far as the Supreme Court is concerned, on the popularity of one side or the other in the litigation is startling. But it also is accurate.

Or, rather, what is accurate is that what matters to the Supreme Court is the popularity among the justices themselves of the party, or of the underlying cause of the party, who’s claiming a violation of the right to due process of law or any other constitutional right by a state court.

The origin of this lies in a legal theory known as legal federalism, which in this context is a theory of law that holds that the lower federal courts should have only severely-limited (and in many instances no) authority to force state courts to comply with constitutional provisions that guarantee individuals certain rights, limitations similar in key respects to those that existed before the Civil War and the post-Civil War constitutional amendments and civil rights legislation.
The theory, in its most extreme version, is that the states are similar to sovereign nations in their right to determine their own laws and policies, almost completely unobstructed by federal laws, including constitutional rights. The term “federalism,” in other words, has a counterintuitive meaning; it is an “ism” that holds that the 50 states are merely a loose federation of separate sovereign governments, joined together in an association for the very limited purposes, such as defense against foreign nations. It is a longstanding cause of the ideological right and was a decades-long cause of William Rehnquist, who crusaded for this ideology throughout his career, as a lawyer, an associate Supreme Court justice, and finally as chief justice. Retired Justice Sandra Day O’Connor, and justices Anthony Kennedy and Clarence Thomas are vocal advocates of this ideology, the latter expressly adopting the most extreme view it: that states are sovereigns for nearly all purposes, that what is at issue is the states’ “dignity,” and that maintaining the dignity of the states trumps maintaining the dignity of individuals.

So it’s surprising that in the 1970s and ‘80s, liberal justices such as Thurgood Marshall, Hugo Black and William Brennan (unlike John Paul Stevens and William O. Douglas) joined conservative colleagues to create a legal-federalism juggernaut that indeed appears to require the lower federal courts to categorically dismiss virtually all lawsuits filed in federal court that allege a violation of a constitutional right by a state court.

At least as the lower federal courts have for decades interpreted these Supreme Court pronouncements, those courts must summarily dismiss these lawsuits because the court lacks “subject-matter jurisdiction” (the legal authority) to hear cases alleging violations of due process or other constitutional rights by state courts, or must accommodate the state court—or, as the Supreme Court phrases it, accord the state court “comity”—by “abstaining” from these cases even if those courts do have jurisdiction to hear the claim.

“Doctrines,” the courts and lawyers call these Supreme Court procedural pronouncements. By which they mean procedural rules that the Supreme Court fabricates, usually in order to keep certain parties or classes of parties out of federal court, or to protect certain potential defendants from becoming defendants in a particular lawsuit or type of lawsuit. These doctrines, which have the force of jurisdictional statutes, disregard actual federal jurisdictional statutes, in apparent contravention of the Constitution. And because the doctrines, unlike the actual jurisdictional statutes that the doctrines flout, are notoriously imprecise and malleable and have exceptions and multipart tests that the lower-court judges can opt to acknowledge the existence of or not, the application of these quasi-statutes varies depending on whether the judge or judges want the case to be litigated in federal court, or, for that matter, at all.

The one that is interpreted to decree that federal courts have no authority to hear such challenges is known as “the Rooker-Feldman doctrine,” named for a 5-4 Supreme Court opinion (District of Columbia Court of Appeals v. Feldman) issued in 1983 that vastly expanded a then-60-year-old Supreme Court opinion (Rooker v. Fidelity Trust Co.). The one that requires the lower federal courts must “abstain” from hearing (simply refuse to hear) these challenges as long as the underlying case remains pending in state court, irrespective of whether or not the lower federal courts have jurisdiction to do so, is known as the “Younger abstention doctrine.” It’s named for 1971 Supreme Court opinion called Younger v. Harris. Originally a doctrine that applied only to prohibit the lower federal courts from enjoining an ongoing state criminal case, it quickly became one that applied to all cases, and whose exceptions the lower federal courts almost never call upon. Although it is unlikely that either Marshall or Brennan foresaw that the wild metastasizing of these doctrines, the lower federal-court judges have found these doctrines extremely useful as a way to reduce their caseload by summarily dismissing a good number of civil rights lawsuits. So nearly all such lawsuits are spontaneously dismissed shortly after they’re filed. Which, with but one express exception and another de facto one, has suited the Supreme Court just fine thus far.

An odd position for self-styled constitutional originalists and textualists to take. Not to mention justices who think that constitutional protections beyond, say, the right to own a gun, or the right to keep the government from exercising eminent domain over their real property, are important too.

Under the Constitution, it is Congress that decides the types, or subject matter, of cases that the federal courts have the legal authority to hear, although of course Congress can’t give the federal courts authority, or remove the authority, to hear types of cases that the Constitution bars federal courts from hearing or that requires the federal courts to hear.

Absent some specific constitutional bar to federal-court subject-matter jurisdiction, the Constitution requires the federal courts to hear the types of cases that Congress, in legislation (“jurisdictional statutes”) says those courts must hear. Or so it would seem, especially to self-styled constitutional originalists and textualists. Like Scalia.

The basic, generic jurisdictional statute that gives the lower federal courts the authority to hear cases challenging the constitutionality of laws, government policies, or actions by a government official or employee says simply that the federal courts have jurisdiction to hear any case that concerns a question of federal law. The statute applies to issues of constitutional, statutory and regulatory law. Because constitutional protections apply not only to the federal government but also, under the Fourteenth Amendment (which was adopted in 1868 in the aftermath of the Civil War), to the states and local governments, the statute that gives the lower federal courts the authority to hear cases that claim a violation of constitutional or federal statutory law by a state or local government or state- or local-government official. The first section of that Amendment bars states from making or enforcing any law that “abridge[s] the privileges or immunities of citizens of the United States,” and from “deprive[ing] any person of life, liberty, or property, without due process of law; nor deny[ing] to any person within its jurisdiction the equal protection of the laws.”

But there’s a more specific jurisdictional statute than the generic one, the Civil Rights Act of 1871, which deals only with alleged violations of a constitutional right by a state or local government or an official or employee of one. The explicit purpose of its main section, 42 U.S.C. § 1983, is to give the federal courts the authority to hear cases that allege violations constitutional civil rights by state or local governments or their officials or employee. It is clear and direct and until it was amended in 1996 contained no limitation at all on the authority of the federal courts to hear cases that allege violations of constitutional rights by any of the three branches of state government, and for the first century of its existence was thought to treat constitutional violations by state courts the same as it treated constitutional violations by state legislatures ( in, say, enacting an unconstitutional statute) or by the state’s executive branch.

In 1996, Congress amended the statute to place certain minor limitations on the jurisdiction of the lower federal courts to hear cases alleging constitutional violations by state courts. But the language of the amended statute makes clear that except for those exceptions, the lower federal courts may hear challenges to the constitutionality of state-court actions.

No matter. The more moderate of the federalist justices have acknowledged that nothing in the Constitution prevents the lower federal courts from hearing cases that challenge the constitutionality of state-court procedures, rulings or declarations of state law. Instead, they invoke the comity ground or say that the lower federal courts have no statutory authority to hear these cases, the federal-question jurisdictional statute and the Civil Rights Act of 1871, notwithstanding.

The latter is particularly curious; it’s based on the Court’s opinion in Feldman that said, for mysterious reasons, that a jurisdictional statute that gives the Supreme Court the authority to hear cases that a state’s appellate courts have considered, if the state courts’ rulings raise federal constitutional or federal statutory issues also prohibits the lower federal courts from hearing those claims. The statute says nothing of the kind—something the Supreme Court finally admitted, in a 2005 unanimous opinion that acknowledged amid expressions of dismay that the lower federal courts had been routinely misinterpreting the Feldman opinion since it was issued 22 years earlier.

But the former—comity—is odd, too. Never explained by those who sing the praises of a judicially induced policy of this type of comity to state courts, a policy that requires the lower federal courts to defy federal jurisdictional statutes, is why the states’ judicial branch is entitled to more comity than the states’ legislative and executive branches. There is little question but that the lower federal courts have jurisdiction under the generic federal-question statute and the Civil Rights Act of 1871 to hear the case. Unless, of course, the challenge to the constitutionally of the statute, enacted by the state legislature, or the executive-branch policy or edict ties in somehow with a state-court case involving the party that wants to challenge its constitutionality. Then, well … uh- oh.

Rehnquist, the most virulent federalist justice in recent decades, explained this by noting that state courts are courts of “competent jurisdiction” to consider constitutional issues. Which is true, but beside the point. The federal courts are, under acts of Congress, courts of competent jurisdiction to hear these cases, too. But, more important, when it is the state court itself, rather than a state legislature or state executive branch, that commits the constitutional violation or creates an unconstitutional rule of law, there is especially no legitimate reason for the Supreme Court to decree the state courts, as a matter of comity and in defiance of federal statute—not to mention the Constitution’s supremacy clause, which requires the states to comply with federal law—free to violate constitutional rights. Unless professional courtesy is considered a legitimate reason.

Since these Court-created doctrines are, by the Court’s own admission, simply policy choices made by the Court itself, and since the doctrines defy clearly-constitutional federal statutes, the question is why the Court decreed them in the first place. And why it sat back, year after year, for more than two decades, as it watched the lower federal courts deny access to those courts in case after case. After case. It wasn’t as if the Court had not been asked during those 22 years to review those lower-court opinions. Suffice it to say that it had been asked, more than once.

What was different this time was who it was that was asking the Court to hear the case, and who was representing that party in the petition asked the Court: Exxon Mobil Corporation was the petitioner to the Court. Its lawyer was former Clinton administration solicitor general Seth Waxman, the Justice Department official that heads the Department’s appellate and Supreme Court litigation office, who is now a partner at mega-power-firm Wilmer Cutler Pickering Hale and Dorr.

And as those of us who closely watch the Supreme Court’s actions know, nearly all of the civil cases that the Court agrees to heart each term are those filed by a member of tiny claque of ultra-prestigious Washington, D.C.-based Supreme Court practitioners, most of whom once served as a law clerk to a Supreme Court justice, all who now have highly lucrative practices based largely on their ability to gain the attention of the Court. The Court waits years and even decades to agree to address a procedural or constitutional issue until just the right party, represented by just the right, lawyer asks it to decide the issue. To a surprising degree—surprising at least in objective terms—the Court treats these lawyers as its de facto case screeners in civil cases and in white collar criminal cases. In any event, few petitioners whose case falls into one of those categories and who are not represented by a member of this tiny, elite cadre has access to Supreme Court review.

When after its 22 years of objectively inexplicable passivity, the Court finally agreed at the behest of Exxon Mobil to rein in the lower federal courts’ blanket use of the Rooker-Feldman doctrine, it did so in a manner so unintelligible that one of its members, Justice Stevens (who had written a stinging dissent in Feldman), mistakenly proclaimed the doctrine dead, in two separate opinions he wrote the next year, once in a dissent on other grounds, the other a concurrence, both times writing only for himself. The Rooker-Feldman and Younger doctrines don’t apply just to cases that raise constitutional issues; they apply equally to any case in which there is or was a related state-court case. In the Exxon Mobil case, the company was suing an oil company owned by the Saudi government. The company invoked a federal jurisdictional statute that gives the federal courts jurisdiction over foreign states in business and certain other types of cases, under certain circumstances.

But Exxon Mobil had filed its federal lawsuit while a state-court case filed by the Saudi oil company involving the same business transaction was pending in state court, so the lower federal courts dismissed the case, saying that under Rooker-Feldman those courts lacked jurisdiction to hear the case. The Supreme Court, after chastising the lower courts throughout the country for improperly interpreting that doctrine throughout the previous two decades and routinely dismissing any lawsuit related to a state-court one, held the lower federal courts indeed had jurisdiction to hear the case. But it did so in an opinion so imprecise, and containing mutually contradictory language, that the lower federal courts now routinely dismiss lawsuits under the Rooker-Feldman doctrine unless the federal lawsuit was filed before all the appeals in the state-court case ended. The rational is that the Court did, after all, appear to say that the real purpose of the doctrine was to comply with the Constitution’s Full Faith and Credit Clause and the federal Full Faith and Credit Act, both of which require the federal government and all the states to treat any one state’s court orders just as that state would treat them. And states don’t treat their own court’s orders as enforceable until the case is over.

Which renders the Court’s ruling effectively worthless except to Exxon Mobil. Coupled with the Younger doctrine, after all, which the Court continues to reaffirm every chance it gets, the opinion does nothing to remove the conundrum that the two doctrines combine to create: In comity to the state courts, and so as to not interfere with ongoing state-court proceedings, the lower federal courts cannot hear these cases as along as the state-court case is pending. And once the state-court case is over, the federal courts cannot hear these cases, because of the Full Faith and Credit Clause and the Full Faith and Credit Act.

Except that the Full Faith and Credit Clause and the Full Faith and Credit Act should have no such effect. Or, if they do, then they also prohibit the lower federal courts from hearing cases that claim that a state statute violates federal constitutional or statutory law. The Full Faith and Credit Clause and the Full Faith and Credit Act require the federal government and all the states to treat any one state’s statutes just as that state would treat them. These federal laws should no more bar federal-court jurisdiction to hear claims that a state-court action or pronouncement violates the Constitution then they should bar federal-court jurisdiction to hear claims that a state statute violates the Constitution.

The issue of access to a federal court to ask for relief from a final state-court judgment that violates a fundamental constitutional right, whether because of the nature of the judgment or because due process was denied in the process of arriving at the judgment is a tremendously important one if state governments really are not free to violate constitutional rights. This is especially true in cases such as child custody, child visitation, adult guardianship and adult conservatorship cases—cases that are perhaps the most susceptible to constitutional violation, ranging from inappropriately intrusive overreach into family relationships, to bald, jaw-dropping violations of even the most basic due process. These cases normally end only when the child reaches the age of majority or the adult dies. Although the Younger doctrine ostensibly has exceptions for irreparable injury and for cases in which the state court system has no method of access to quick appellate rectification, the federal courts—which unlike state-court systems are set up to hear emergency matters—the federal courts invariably claim that the doctrine requires the court to “abstain.”

These cases usually involve the rights of ordinary individuals. And as with tobacco companies in the case in which several tobacco companies asked Justice Scalia to stay the judgment temporarily and in which he obliged, the constraints of the Due Process Clause will be the only federal protection against violations of even the most basic of due process rights by the state courts. Except that for them, those constraints are meaningless. The Supreme Court almost certainly won’t be asked to hear their cases—the costs involved in filing such petition, even apart from attorneys’ fees, runs several thousand dollars—and wouldn’t agree to hear their cases even if asked.

This is not to ignore the possibility that given the large number of cases of that type in state family-law and probate courts, federal courts could be overwhelmed with petitions for temporary or permanent relief in these cases. It is instead to say that the decades-long categorical removal of any actual federal process by which to enforce the requirement that states comply with the Constitution serves to effectively remove the requirement that states comply with the Constitution. The Court lacks the authority under the Constitution to order the lower courts to refuse to comply with a clear statute that itself is constitutional, even if the Court fears that compliance with the statute would overwhelm those courts; that is a matter for Congress, not the Supreme Court, to address. But it is in any event unlikely that a restoration of the right to access to lower-federal-court review for those whose theoretical access to Supreme Court review borders on cruel sham (in other words, virtually everyone) would be unlikely to overburden the lower federal courts. The restoration of the availability, as required by the Civil Rights Act, of a quick federal-court process by which continued profound irreparable injury can be ordered halted—the recognition by state-court judges that this process is available—likely would itself reduce dramatically the number of instances in which the process would be legitimately used, especially because many of the violations in these cases occur through de facto policies of the local or state court system (policies that sometimes violate the state’s own statutes as well as clear constitutional law). Once a policy is held unconstitutional by a federal court, the state courts are unlikely to continue the policy.

Ultimately, what’s at issue here is not simply who, theoretically, has access to federal court but who has enforceable constitutional protections, and under what circumstances.

In 2006 the Supreme Court recognized in a high-profile bankruptcy case that the federal Bankruptcy Act gives federal bankruptcy courts the authority to consider challenges to final state-court judgments that are relevant to issues in the bankruptcy case. But, well, that was a bankruptcy case, not a challenge to the constitutionality of a state-court ruling, and the Court skirted the Rooker-Feldman doctrine by not even mentioning it. And of course the Exxon Mobil case, in which the Court did discuss that doctrine, was a standard business-law case. I figure it will take another oil company to ask the Court recognize that the Civil Rights Act of 1871, like the Bankruptcy Act and like the statute that gives the federal courts jurisdiction over foreign states, gives the federal courts the authority to review the constitutionality of state-court actions, before the Court agrees to do that.

Or maybe the same oil company. Unless some other type of large corporation hires a member of the prestigious Supreme Court bar to ask the Court to do so.