Powers, Rights, and Section 25

The 1789 Judiciary Act's Section 251 has proved an embarrassment for those claiming that all federal question jurisdiction must vest, either originally or by appellate review, in the federal courts. (2) Because Congress did not provide for general federal question jurisdiction in the lower federal courts until 1875, (3) Supreme Court review of state court judgments under Section 25 would be needed to ensure that all cases arising under federal law would vest in some Article III court. On its face, however, Section 25, as well as its 1867 successor, (4) excluded some federal issues from Supreme Court review of state court judgments, particularly when the state court overvindicated a federal claim. (5) Indeed, review at the instance of either side of federal issues was not clearly available until Congress amended the review provisions in 1914. (6) This amendment responded to the apparent unreviewability of the New York Court of Appeals' decision in Ives v. South Buffalo Railway Co., (7) holding that the state's workers' compensation law was unconstitutional. (8) A leading modern proponent of mandatory vesting, Akhil Amar, sought to blunt the impact of Section 25 on his mandatory vesting claim by two arguments--one specific to Section 25 and the other more general as to the role of federal question jurisdiction. As to Section 25 specifically, Amar reasoned that the direct review provisions in fact did encompass all federal questions, because Section 25's text could be read to include either side's claim under federal law. (9) He argued that "[i]n virtually every case in which one party argues for a federal 'right,' the other side can argue that it has a federal 'immunity'--which is simply another way of saying that one's opponent has no federal right." (10) At a higher level of generality, Amar harkened to a more general theme in much federal courts scholarship--that the primary role of the federal courts is the protection of individuals against government. (11) This theme was somewhat in tension with Amar's theory that all federal question jurisdiction necessarily vested in the federal courts and that Section 25 encompassed review no matter which way the federal issue had been decided. (12) But for Amar, even if Section 25 were more restrictive than he claimed, that section nevertheless had vested the most important part of mandatory federal question jurisdiction by providing review for all undervindications of federal rights. (13) The point of Article III's mandatory vesting of federal question jurisdiction, after all, was not uniformity but federal rights enforcement: The inspiration behind "arising under" jurisdiction was rooted not in uniformity but in the importance of protecting individual rights by providing an impartial and independent national tribunal. Where the state court decision violated no individual federal rights, but in fact gave the litigant raising a federal right more than he was entitled to as an absolute minimum, no compelling need for federal court supervision would arise. (14) Other scholars who argue for some form of mandatory vesting, particularly those arguing against broad congressional power to strip federal courts of jurisdiction, similarly emphasize federal courts' central role in protecting constitutional rights. (15) (For some mandatory vesting proponents, however, uniformity is also an important concern. (16)) Daniel Meltzer disagreed with Amar's mandatory vesting thesis, and argued that history did not support Amar's claim that Section 25 granted the Supreme Court power to take review at the instance of either side of a federal rights claim. (17) He noted that one could not always easily turn a claim of overenforcement of a federal right into an immunity or privilege. (18) He acknowledged that reasoning like Amar's surfaced in a 1908 case and a few subsequent decisions involving employees' actions against railroads. …