How Supreme Court review of state court decisions that "over-protect" a criminal defendant's rights under the US Constitution violates Article III.
Charles Glover, Jr. had a revoked license. He went for a drive anyway in a car registered in his name. He was stopped by an officer and charged with being a habitual violator. Prior to trial, Glover moved to suppress all evidence obtained as a result of the stop (the fact that he was driving with a revoked license) on the grounds that the stop violated the Fourth Amendment. Although the officer knew Glover was the registered owner of the vehicle and his license was revoked, the officer did not know who was driving the vehicle prior to making the stop. The officer made the stop based solely on the belief that Glover was probably the driver because the vehicle was registered to him. The trial court granted Glover's motion and suppressed the evidence.
Ultimately, Glover's case made its way to the Kansas Supreme Court, which upheld the trial court's order suppressing the evidence on the grounds that the stop was unlawful under Terry v. Ohio, the United States Supreme Court case establishing that under the Fourth Amendment even a brief investigatory stop must be based on a reasonable suspicion that the person being stopped is engaged in criminal activity. The Kansas Supreme Court reasoned that the officer's belief that Glover was the driver was only a "hunch" based on the assumption that the driver was also the registered owner of the vehicle. Absent any additional facts tending to show that Glover was driving, the officer did not have a reasonable suspicion that the driver of the vehicle was engaged in any criminal activity.
The prosecutor then filed a Petition for Certiorari on behalf of the State of Kansas seeking review by the United States Supreme Court. The Supreme Court granted the petition and in an 8 - 1 decision "reversed" the Kansas Supreme Court. Justice Thomas wrote the majority opinion joined by Roberts, Ginsburg, Breyer, Alito, Kagan, Gorsuch and Kavanaugh. Kagan filed a concurring opinion joined by Ginsburg. Sotomayor filed the lone dissent. Nowhere in any of the opinions, majority, concurrence, or dissent, did any of the justices question whether the Court had jurisdiction to hear and decide the case. All nine justices apparently assumed that, because the Kansas Supreme Court had based its decision on the Fourth Amendment, the Supreme Court had jurisdiction under Article III of the Constitution to consider the "federal question" raised by the petition. That assumption was demonstrably wrong.
Section 2 of Article III establishes the jurisdiction of the Supreme Court and all inferior federal courts established by Congress. The first clause of Section 2 provides:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
The jurisdiction conferred by the foregoing language is generally referred to as federal question jurisdiction. Federal question jurisdiction, as the plain language of section 2 states, is subject to an important limitation. Federal courts are not empowered to decide federal questions generally. They are empowered only to decide cases, and only those cases that arise under the Constitution, the laws of the United States, or treaties to which the United States is a party. Thus, whether federal question jurisdiction exists depends on whether the question of federal law at issue arises in the context of a "case" as that term is used in Article III.
Going all the way back to Marbury v. Madison, 5 U.S. 137 (1803), the opinion usually cited as establishing the Supreme Court's authority to declare legislative and executive acts unconstitutional, the Supreme Court has set forth very specific characteristics that must be present for an Article III case to exist. First, the parties must be adverse. That is, the interests of one party must be in opposition to the interests of the other party. Second, the dispute must be actual and substantial. Third, the dispute must be one that is capable of resolution through the judicial process such that the result will be a final determination of rights and liabilities of the parties, not merely an advisory opinion.
None of these characteristics are presented when, as in Kansas v. Glover, a petition is filed on behalf of a state seeking review of a decision by a court of that state in favor of a criminal defendant's assertion of a federal constitutional right. Because the state court has ruled in favor of the defendant, the parties to the action, the state and the defendant, are no longer adverse. They are in fact in complete agreement as to how the particular constitutional provision at issue should be interpreted and applied. The state prosecutor may not agree, but it is the state court that has the final say in any particular case, and the decision by a state court of last resort is the final decision of the state itself. Any disagreement or dispute that remains is solely between the prosecutor and the court.
In any event, actions like Kansas v. Glover are not suits initiated by one branch of state government against another. They are criminal prosecutions that begin and end in the state court system. In order to obtain review of the state case by the Supreme Court, there must be some basis for one of the parties, either the defendant or the state, to invoke federal jurisdiction. In other words, at least one of the parties must have "standing."
The Supreme Court recently engaged in a lengthy discussion of the standing doctrine and its history in FDA v. Alliance for Hippocratic Medicine. In that case, the Court held the plaintiff association of doctors opposed to abortion lacked standing to challenge the FDA's approval of the drug mifepristone because the doctors, who did not prescribe the drug, could not demonstrate they had suffered any injury as a result of the FDA's action. In a unanimous opinion authored by Justice Kavanaugh, the Court described the standing doctrine as a "bedrock constitutional requirement" based on the concept of separation of powers that precluded jurisdiction under Article III unless the person seeking a determination of a federal question in federal court could show a concrete injury in fact caused by the unlawful conduct of the opposing party.
Applying the foregoing principles to a case in which a state court has ruled against a defendant's assertion of a constitutional right, such as a claim that evidence used at trial was obtained in violation of the Fourth Amendment, the defendant once convicted would clearly have standing under Article III. The defendant has suffered a concrete injury in the form of conviction and claims that the injury is the result a violation of federal law by the state. That injury can be redressed by an order requiring the state to retry the defendant without using the illegally obtained evidence.
When a state court rules in favor of the defendant's claimed violation of a constitutional right, however, none of the criteria for standing or Article III jurisdiction is present. The party seeking review (the state) cannot show it has suffered any concrete injury. Even if the evidence should not have been suppressed, it is pure speculation whether a conviction would have been obtained had the state court not suppresses the evidence. The decision to convict or acquit is ultimately up to a judge or jury. Assuming the state has at least suffered some speculative or hypothetical injury by being prohibited from using certain evidence at trial, that injury is not the result of the defendant, the opposing party, having violated any federal law. It is not a violation of federal law for a defendant to seek suppression of evidence in a criminal prosecution and obtain a ruling in his or her favor. Nor is it a violation of federal law for a state court to rule in favor of the defendant, even if the United States Supreme Court might have ruled differently.
Furthermore, any injury that might theoretically exist cannot be redressed by a favorable decision. The Supreme Court cannot compel a state court to rewrite its opinion or issue a different ruling in any particular case, because state courts are not federal courts. State courts derive their judicial power from their respective state constitutions, not the federal constitution. The Supreme Court has no means or ability to directly control the conduct of any state court in the way that is can control the conduct of lower federal courts. Thus. despite the Supreme Court's decision in Kansas v. Glover is for all practical purposes nothing more than an advisory opinion. The Supreme Court has no means by which it could actually require the Kansas Supreme Court to change its decision or take any further action in the case. The Kansas Supreme Court could simply do nothing and let its ruling suppressing the evidence stand. The evidence would then remain inadmissible at trial in any state prosecution.
Theoretically, the Supreme Court could issue a direct order to the Justices of the Kansas Supreme Court requiring them to rewrite their decision. However, such an order would be both absurd and ineffective. If the Kansas Supreme Court justices simply ignored the order, how would the US Supreme Court compel compliance? Would it hold them in contempt? Would it send US Marshals or federal troops to arrest the Kansas Supreme Court justices or threaten them with sanctions or use force against their persons or property if they did not comply? Any such attempt would be a clear violation of state sovereignty and an unconstitutional interference in the independence of the state courts.
It would be a different matter entirely had the Kansas Supreme Court ruled against Glover and he had been convicted at trial. Glover could have then sought review by the United States Supreme Court, which if it agreed with him could order the State of Kansas to give him a new trial without using the unlawfully obtained evidence. If Kansas refused or failed to do so, the Supreme Court could then order that Glover be released from custody, and that order could be enforced by federal Marshals or troops if necessary by physically removing Glover from the custody of Kansas state officials. That action would not violate Kansas state sovereignty because Kansas, like any other state, is not sovereign with respect to the rights provided by the Constitution. The Constitution itself states that federal law is supreme over state law where those laws conflict. Therefore, when a defendant in a state criminal case raises an issue of federal constitutional law, state law must give way to federal law in that the state must respect the defendants federally guaranteed rights. But, as long as the state respects those rights, there is no conflict between state law and federal law, even if the state provides more protection than the Constitution requires. Indeed, the Supreme Court itself has often described the rights provided to criminal defendants by the Constitution as establishing a floor below which the states cannot go, but has never suggested that the Constitution also provides a ceiling prohibiting states from recognizing or granting greater rights, regardless of whether those rights are based on state or federal constitutional law.
Nearly four decades ago, Justice Stevens touched on this issue in his dissenting opinion in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), but failed to follow his own analysis to its logical conclusion. Michigan v. Long, like Kansas v. Glover came to the Supreme Court via a petition for certiorari filed by the state prosecutor seeking review of a decision by the Michigan Supreme Court suppressing unlawfully obtained evidence. In an opinion authored by Justice O'Connor, the majority rejected the defendant's claim that jurisdiction was lacking under the "independent and adequate state law" doctrine because the Michigan Supreme Court had based its decision on state law, not the Fourth Amendment. According to the majority, jurisdiction was present because it was unclear whether the Michigan court's opinion rested solely on state law and the need to maintain "uniformity of federal law" conferred federal jurisdiction under Article III.[i]
Stevens took issue with the majority's rationale, but did not suggest the Court lacked jurisdiction under Article III. Instead, Stevens argued for judicial restraint, claiming that the best way to show respect for the judgment of state courts and manage scarce federal judicial resources was to decline to exercise jurisdiction in such cases. In doing so, Stevens employed the language of traditional Article III jurisprudence by pointing out that there was no party before the court seeking to vindicate a federal right and that the complaining party was actually an officer of the state itself. Stevens also argued that the Court's function was "to correct wrong judgments, not revise opinions," and questioned whether the Court's decision would actually affect the outcome of the case. Finally, Stevens expressed frustration with the majority's suggestion that reversing a state court's decisions for the sole purpose of declaring that it's understanding of federal law was mistaken would somehow show respect for the state court.
Stevens compared state courts, being the creations of separate sovereign entities, to foreign courts and asked what interest the Supreme Court would have in reviewing the decision of a Finnish court acquitting and releasing an American citizen who had been arrested for possession of marijuana.
If the Finnish police had arrested a Finish citizen for possession of marijuana, and the Finnish courts had turned him loose, no American would have standing to object. If instead they arrested an American citizen and acquitted him, we might have been concerned about the arrest but surely could not have complained about the acquittal, even if the Finnish Court had based its decision on its understanding of the United States Constitution. That would be true even if we had a treaty with Finland requiring it to respect the rights of American citizens under the United States Constitution.
Although Stevens did not directly address the question whether the petition in Michigan v. Long presented an Article III case, his analysis necessarily leads to the conclusion that no such case was present. Thus, whether the Supreme Court should exercise jurisdiction in such cases is not a matter of discretion or restraint as Stevens suggested. Rather, it is a matter of respecting the constitutional limits placed on federal judicial power by Article III.
Despite being the lone dissenter, Stevens expressed confidence that the Court would one day recognize its error and "reconsider the propriety of the unwarranted expansion of the Court's jurisdiction" that he believed Michigan v. Long represented. Yet, the Court has shown no inclination to revisit the "independent and adequate state" law doctrine or consider any challenge to its jurisdiction under that doctrine since Michigan v. Long was decided. Indeed, the current Court appears to have no interest whatsoever in any suggestion that it may lack jurisdiction to review state court decisions that "over-protect" a defendant's constitutional rights. Nevertheless, it should be clear to the Court itself that in accepting review of cases like Michigan v. Long and Kansas v. Glover the Court is exercising federal judicial power far in excess of that conferred by Article III.
PR
[i] Justice O'Connor's notion of "uniformity of federal law" appears to have been fashioned from thin air. There is no language in the Constitution either expressly or impliedly requiring that federal law be applied uniformly in all instances. With regard to rights guaranteed to criminal defendants, there is no logical reason why state courts must enforce such rights to exactly the same degree and extent as do federal courts. As noted above, the Supreme Court itself has often referred to such rights as establishing a floor below which a state cannot go, but has never suggested the Constitution provides a ceiling as well. The so called "independent and adequate state law" doctrine itself is based on a recognition that states can provide greater protections to its own citizens under state law than is required under federal law. The Supreme Court has never provided any rational explanation why state courts cannot also provide greater protections under the United States Constitution by interpreting an applying its provisions more broadly than required by the Supreme Court, since doing so does not violate or offend any federal law.
Comments