Read Law #2: The appellate flavor of judicial review
§25 of the Judiciary Act of 1789 and how two cases around this section confirmed the Supreme Court's authority to review both civil and criminal judgements by state courts.
Welcome
Welcome to Read Law, where we work through a typical law school's course of study ourselves out in the open. Each week, I'll send out write up of what I got out of each section. All of my raw notes and work products are always freely available at https://law.zachwick.com if you want to use them to help enable your own autodidactic legal education.
Synopsis
This week's reading is primarily about §25 of the Judiciary Act of 1789 and how two cases around this section confirmed the Supreme Court's authority to review both civil and criminal judgements by state courts. Last week's reading was regarding the first and second definitions of judicial review. This week, our reading tackles the third definition which reads "A court's review of a lower court's or an administrative body's factual or legal findings." This week's text deals with the U.S. Supreme Court's power of judicial review when hearing cases under appellate jurisdiction.
Because we're going to dig into it, the full text of §25 is as follows:
That a final judgement or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specifically set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error.
This is a particularly jumbled up section, with lots of commas and clauses, so let's try to tease it apart. At a high level, this section confers upon the Supreme Court of the United States, the right to re-examine and reverse or affirm the final ruling for a case in any state court in certain scenarios. The jumbled up bits in the middle of this section simply list out the scenarios in which rulings by a state court can be re-examined by the U.S. Supreme Court.
The first scenario is when a state court hears a case in which the validity of a treaty, statute, or federally granted authority is under question and the highest court in the state rules that the treaty, statute, or federally granted authority being exercised is not valid.
The second scenario is when either
a state court hears a case in which the validity of a statute or state granted authority is under question because they are purported to be unconstitutional or go against federal laws or treaties, but the state court rules that the statute or granted authority is constitutional or valid under federal law and treaties
a state court rules against a title, right, privilege, or exemption set up or claimed by either party, when that title, right, privilege, or exemption is granted by the constitution, a treaty, or a federal statute or commission.
It is important to note that §25 doesn't discriminate between civil and criminal suits — it reads "a final judgement or decree in any suit" (emphasis added). It would take two separate cases for the Supreme Court to confirm that §25 conferred this power in both civil and criminal cases.
The first case the the Supreme Court heard regarding §25 was Martin v. Hunter's Lessee. During the American Revolution, the Commonwealth of Virginia enacted legislation that allowed it to confiscate Loyalists' property. Land owned by a loyalist, Martin was confiscated by the State and transferred to David Hunter. The Treaty of Paris (1783), between Great Britain and the United States, nullified such confiscations, permitting Martin to sue for the return of the property. The trial court ruled in his favor, but the Virginia state supreme court (the "highest court of law or equity of a State in which a decision in the suit could be had" from §25) upheld the confiscation. It did not do so on the grounds that Virginia law was superior to U.S. treaties, but rather because it argued that its own interpretation of the treaty revealed that the treaty did not, in fact, cover the dispute. On review in Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603 (1813), the U.S. Supreme Court disagreed with this conclusion, ruling that the treaty did in fact cover the dispute, and remanded the case back to the Virginia Supreme Court, but the Virginia court then decided that the U.S. Supreme Court did not have authority over cases originating in state court:
The Court is unanimously of opinion, that the appellate power of the Supreme Court of the United States does not extend to this Court, under a sound construction of the Constitution of the United States; that so much of the 25th section of the act of Congress to establish the judicial courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this Court, is not in pursuance of the Constitution of the United States; that the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this Court, and that obedience to its mandate be declined by the Court.
The U.S. Supreme Court reversed the state court's decision on appeal, ruling that questions of federal law were within its jurisdiction. This act confirmed that the U.S. Supreme Court could re-examine and reverse or affirm civil suits.
The case in which the U.S. Supreme Court sustained its jurisdiction to review the validity of state court rulings in criminal suits was Cohens v. Virginia. In this case, brothers Philip and Mendes Cohen were convicted in a local Virginian court for selling tickets for the congressionally established "National Lottery" within the state of Virginia, which had its own state lottery and had a prohibition on the sale of out-of-state lottery tickets. The "National Lottery" was intended to raise capital for the municipal government of the District of Columbia, with the Virginia state lotteries intended to raise capital for the Virginia government. The U.S. Supreme Court opined that it had jurisdiction over an appeal in a criminal case already decided by the highest court in the state of Virginia, and upheld the convictions of the Cohen brothers noting that Congress did not intend to authorize the sale of tickets for the "National Lottery" outside of the District of Columbia, and therefore the legislation creating the "National Lottery" did not conflict with Virginia's state law prohibiting the sale of out-of-state lotteries.
In both of these cases, the U.S. Supreme Court relied on language in Article III, Section 2 of the U.S. Constitution (specifically Article III, Section 2, Clause 2 in Martin) to confirm its jurisdiction.
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;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
The key point from both Martin and Cohens is that when the U.S. Constitution reads "in all other Cases before mentioned" when conferring original and appellate jurisdiction to the U.S. Supreme Court, it really means just that — that the U.S. Supreme Court has original jurisdiction in a narrow set of situations, and has appellate jurisdiction in each and every other situation.
My key takeaways
breaking down lists of clauses into disparate grouped parts is a useful skill to practice
judicial review: A court's review of a lower court's or an administrative body's factual or legal findings.
New words and phrases
Next section and feedback
Our next section deals with the U.S. Supreme Court's exclusivity in constitutional interpretation. It is a meatier section than we've encountered so far, and appears to summarize some key points around judicial review as well as offering some nuanced takes around the authoritativeness of U.S. Supreme Court rulings and the political restraints on the court.
As always, you can find all of the raw notes for this section and subscribe to write-ups of future sections at https://law.zachwick.com and on Substack.