In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions

INTRODUCTION It seems obvious that the Supreme Court must have jurisdiction to engage in direct appellate review of state criminal prosecutions that resolve questions of federal law. Federal questions are ubiquitous in state criminal prosecutions. And given the limits on federal habeas review, direct appellate review of state decisions appears essential for the Supreme Court to exercise its structural function of maintaining the supremacy and uniformity of federal law. Think of cases like Mapp v. Ohio, (1) Miranda v. Arizona, (2) Crawford v. Washington, (3) and Maryland v. King, (4) these are just a handful of the consequential cases decided by the Supreme Court on direct appellate review of state criminal prosecutions over the years. And they are but a tiny sliver of the massively important set of cases in which the Supreme Court has engaged in direct appellate review of a state criminal prosecution. Not only is such review now routine, pervasive, and unquestioned, but it is also almost impossible for anyone to imagine that the Supreme Court ever lacked appellate jurisdiction over such cases. For almost two centuries, indeed, nobody has. Until now. This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. (5) The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed with the Act. It provided for Supreme Court appellate review of certain state court decisions denying the federal-law-based rights of certain litigants. (6) The received understanding of section 25, tracing back almost two hundred years and continuing into the present, is that the direct appellate review authorized by Congress in that provision encompassed both civil suits and criminal prosecutions. Professor Akhil Amar, for example, has written that "the Supreme Court was given plenary appellate review, under the famous section 25, over all state court decisions which defeated rights set up by the appellant under the Constitution, laws or treaties of the United States." (7) And Professor John Harrison has written that "Section 25 of the Judiciary Act of 1789 ... provided for federal appellate jurisdiction over state criminal prosecutions in some circumstances." (8) This consensus understanding of section 25 dates back to the Supreme Court's 1821 landmark decision in Cohens v. Virginia. (9) Virginia prosecuted the Cohen brothers for selling lottery tickets for the congressionally created Grand National Lottery without state law authorization. (10) The Cohens unsuccessfully defended on the ground that the federal statute authorizing the tickets for this lottery preempted the state's authority to regulate their sale. (11) Chief Justice Marshall's issuance of a writ of error pursuant to section 25 provoked a massive jurisdictional battle--one of the most significant controversies to face the Court under Chief Justice Marshall. (12) But that battle was almost exclusively about the Court's jurisdiction under Article III. (13) The Court held in Cohens, as a constitutional matter, that the Supreme Court had appellate jurisdiction to engage in direct review of state criminal prosecutions that fit within Article III's extension of the federal judicial power to cases arising under federal law. The claim that there was no statutory jurisdiction in Cohens because section 25 did not encompass direct appellate review of state criminal prosecutions by the Supreme Court of the United States was neither raised nor decided in the case. …