Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance

Jonathan F. Mitchell - George Mason University School of Law

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State supreme courts occasionally issue questionable interpretations of their states’ statutes, constitutional provisions, or other laws. Sometimes this reflects home-town favoritism or bias against out-of-state parties.1 On other occasions, state-court judges use their interpretive power over state law to combat political movements that they oppose. During the 1950s and 1960s, for example, state supreme courts in the South twisted state laws to thwart the nascent civil-rights movement.2 More recent state supreme court rulings have generated controversy by forcing the Boy Scouts to accept homosexuals as Scoutmasters or sustaining large punitive-damages awards against foreign corporations. Yet everyone agrees that Supreme Court justices are powerless to reverse these decisions solely on state-law grounds, no matter how erroneous or misguided they think the state court’s reasoning is. Instead, the Supreme Court may reverse a state supreme court only when it wishes to enforce some provision of federal law. This principle has become a pillar of judicial federalism, regularly assumed in court opinions and commentary with little analysis or justification.3

This Article challenges the longstanding notion that the Supreme Court should never reverse a state supreme court’s judgment solely on state-law grounds. It contends that there exists a narrow category of cases in which the justices can and should consider state-law reversals as an alternative to rulings that would otherwise rest on novel and contentious federal constitutional pronouncements. If this claim seems dramatic, it is only because the intuition that state supreme courts are final and absolute expositors of state law has attained an almost natural-law status in our way of thinking. Yet there are no statutes or constitutional provisions that block the Supreme Court from reversing a state supreme court’s judgment solely on state-law grounds, so long as the case presents a federal claim sufficient to satisfy Article III and 28 USC § 1257. The Supreme Court’s reluctance to consider such state-law reversals is a self-imposed constraint that stems from its 1874 decision in Murdock v City of Memphis,4 which held that the justices lacked “jurisdiction” to review a state supreme court’s interpretation of state law, even in cases that present federal claims. The Supreme Court has since backed away from this seemingly absolute rule; it now reviews and sets aside state-court interpretations of state law that lack “fair and substantial” or “adequate” support in cases where the justices wish to enforce federal rights against the states.5 Yet vestiges of Murdock remain; the justices will not even consider reversing a state supreme court solely on state-law grounds, as a means to avoid ruling on the federal claims presented in a case.

The Supreme Court’s unwillingness to consider such state-law reversals is in tension with the Court’s oft-stated desire to avoid resolving federal constitutional issues unless absolutely necessary.6 When state supreme courts issue controversial interpretations of state law that simultaneously give rise to difficult constitutional questions, the Murdock regime forces the justices into a binary choice: allow such state-court judgments to stand, or reverse on federal constitutional grounds. When the justices are unwilling to affirm the state supreme court’s ruling, this false dichotomy causes them to issue unnecessary and often contentious pronouncements of federal constitutional law to justify their decision to reverse the state court’s judgment. Consider the following examples:

  • The New Jersey Supreme Court holds that the Boy Scouts qualifies as a “place of public accommodation” under the state’s antidiscrimination statutes and bars the Scouts from excluding homosexuals as Scoutmasters. The Supreme Court of the United States, deeming itself powerless to reverse this holding solely on state-law grounds, must choose between allowing the state-court ruling to stand and reversing on federal constitutional grounds. Unwilling to affirm the state-court ruling, the justices hold in a 5-4 decision that the First Amendment protects the Boy Scouts’ right to discriminate against homosexuals.
  • The Alabama Supreme Court sustains a $2 million punitive-damages award against BMW in a case where compensatory damages were only $4,000. The Supreme Court of the United States deems itself powerless to review whether this decision comports with Alabama law, which limits punitive damages to an “amount that will accomplish society’s goals of punishment and deterrence.” Unwilling to allow this state-court decision to stand, the justices hold in a 5-4 ruling that the Fourteenth Amendment’s Due Process Clause imposes substantive limitations on the size of punitive-damages awards.
  • The Florida Supreme Court renders a questionable interpretation of state election statutes during the 2000 recount litigation. Deeming themselves powerless to reverse the state supreme court on state-law grounds, the justices instead reverse the state court’s judgments by relying on a far-fetched equal-protection rationale in an opinion that has been widely panned as unconvincing and lawless.

These (and many other) Murdock-induced constitutional pronouncements are often costly substitutes for rulings that would reverse a state court solely on state-law grounds. They produce nationalized, entrenched holdings that the political branches are powerless to change except by constitutional amendment or new Supreme Court appointments; this significantly increases the error costs of the Court’s ruling if the justices’ views turn out to be mistaken. A state-law reversal, by contrast, would affect only one state and preserve space for democratic institutions to enact different policies in the near or distant future. In addition, the novel constitutional holdings that the Court has created in its efforts to counter what it perceives as pernicious state-court rulings threaten to impose large decision costs on future courts by complicating federal constitutional doctrines. The Supreme Court could mitigate or avoid these harms by recognizing an option to reverse certain state supreme court rulings on minimalist, state-law grounds; it need not trundle out the heavy artillery of federal constitutional law whenever it decides to reverse an unacceptable state-court decision.

The justices’ categorical refusal to reverse state-court rulings solely on state-law grounds stands in contrast to the Supreme Court’s already-established prerogative to reject state supreme court interpretations of state law in cases where the justices wish to enforce federal rights against the states. When a state supreme court rejects a federal-law claim by concluding that a litigant failed to comply with state procedural rules, the justices will review those state-law grounds and set aside the state supreme court’s interpretation of state law if it lacks “fair and substantial” or “adequate” support.7 And it is well established that the Supreme Court may review and reverse a state supreme court’s determination of whether a “contract” was formed under state law when litigants assert rights under the Contracts Clause.8

These longstanding practices represent a substantial retreat from Murdock’s holding that the Supreme Court lacks “jurisdiction” to review a state supreme court’s interpretation of state law, and the justices should bury that jurisdictional fiction and acknowledge their power to review a state supreme court’s interpretation of state law in any case that presents a colorable federal-law claim. Rather than using Murdock’s jurisdictional pretense to exclude state-law issues from their docket, the justices should use the writ of certiorari to limit their involvement in state law to the rare cases in which state-law reversals can advance important systemic goals. Such cases include, but are not necessarily limited to, the established precedents that reject a state supreme court’s interpretation of state law in order to ensure the efficacy of federal rights litigated in state-court proceedings. This Article proposes one additional category of cases in which the Supreme Court should review a state supreme court’s interpretation of state law as a means to advance important systemic goals. These are the cases in which a state-law reversal would provide an alternative to a ruling that would otherwise rest on a novel and contentious federal constitutional pronouncement. This expanded prerogative to review and reverse state supreme court interpretations of state law is designed to mitigate the Murdock regime’s feedback effects on federal constitutional doctrine, and enable the justices to use state-law dispositions to economize on the decision costs and error costs associated with Supreme Court rulings.

First, nothing in the Constitution nor in Congress’s jurisdictional statutes precludes the Supreme Court from reviewing and reversing a state supreme court’s interpretation of state law in any case presenting a federal claim. Murdock’s conclusion to the contrary rested on docket-control concerns rather than textual analysis; at the time, the justices lacked discretionary certiorari jurisdiction, and they did not want to empower litigants to force the Court to resolve state-law issues in cases presenting weak or contrived federal-law claims. Now that the justices can avoid this problem by simply denying certiorari in such cases, they should abandon Murdock’s “jurisdictional” fiction and use discretionary certiorari denials as the exclusive means for limiting their involvement in state-law issues.

Second, the justices’ reluctance to reverse state supreme court rulings solely on state-law grounds has led the Supreme Court to issue questionable pronouncements of federal constitutional law in cases that it could have easily resolved on state-law grounds. In such cases, the justices should consider state-law reversals as alternative dispositions that avoid the potential error costs of these Murdock-induced constitutional pronouncements, as well as the decision costs that novel constitutional doctrines can impose on future courts and litigants. This is not to say that the justices should always opt for a state-law reversal over a federal constitutional one. In some cases the risk of error from issuing a federal constitutional pronouncement is low, and a constitutional resolution can sometimes bring clarity and thereby reduce decision costs in future litigation.9 And in other cases the state supreme court will have specialized expertise in the relevant state-law issues, and the justices should be reluctant to second-guess its interpretation. But in many cases a state-law reversal will be far more defensible than the Court’s decision to issue a disputed federal constitutional pronouncement that entrenches a controversial policy and promises to increase significantly decision costs by complicating judicial judgments in future cases.

Finally, there are at least three mechanisms that could motivate a justice to opt for reversals that rest solely on state law in cases where they already have five votes to reverse on federal constitutional grounds. First is the veil of uncertainty behind which the Court announces its federal constitutional pronouncements. A court majority cannot predict or control how future courts might use or build upon its constitutional holding; this uncertainty might make a reversal that rests solely on state-law grounds seem more appealing. The second mechanism is the “civilizing force of hypocrisy”:10 in some cases, a reversal resting solely on state-law grounds will be easier to reconcile with a justice’s previously stated interpretive commitments than a reversal that issues a federal constitutional holding. Third, a justice may believe that a state supreme court decision is wrong and wish to reverse it, yet want to avoid entrenching his ruling as federal constitutional law if he harbors any doubt about the correctness of his views. These mechanisms can induce a justice to vote for a state-law reversal even in cases where his colleagues prefer to resolve the federal constitutional issues. In many cases, a single justice’s decision to reverse solely on state-law grounds can deprive a federal constitutional holding of the fifth vote necessary to make it law, thereby avoiding the potentially problematic constitutional pronouncement.

In sum, the justices should at least consider such state-law reversals in cases that would otherwise rest on novel and contentious federal constitutional pronouncements. This will alleviate the hydraulic pressure that the status quo Murdock regime imposes on federal constitutional doctrine, and prevent situations in which the justices must choose between affirming what they perceive as a biased or erroneous state-court ruling and reversing on controversial federal constitutional grounds that promise to impose high decision costs on future courts and high error costs if the justices’ views turn out to be mistaken.


Jonathan Mitchell is an Assistant Professor at the George Mason University School of Law.

This Legal Workshop article is based on Jonathan F. Mitchell, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, 77 U Chi L Rev 1335 (2010), online at

Copyright © 2010 University of Chicago Law Review.

  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-of-state automobile distributor and retail dealer).
  2. See, for example, Ex parte NAACP, 91 S2d 214 (Ala 1956); City of Columbia v Bouie, 124 SE2d 332 (SC 1962).
  3. 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.”); 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.”).
  4. 87 US (20 Wall) 590 (1874).
  5. See, for example, Howlett v Rose, 496 US 356, 366 (1990) (collecting authorities); Charles Alan Wright and Mary Kay Kane, The Law of Federal Courts 793–98 (West 6th ed 2002) (same).
  6. See, for example, Northwest Austin Municipal Utility District Number One v Holder, 129 S Ct 2504, 2508 (2009); INS v St. Cyr, 533 US 289, 299–300 & n 12 (2001) (collecting authorities); Ashwander v Tennessee Valley Authority, 297 US 288, 341–56 (1936) (Brandeis concurring).
  7. See, for example, NAACP v Patterson, 357 US 449, 455–56 (1958).
  8. 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.’”), quoting Anderson v Brand, 303 US 95, 100 (1938); 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.”).
  9. See 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”).
  10. See Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U Pa J Const L 345, 413 (2000).

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