This is an edited text of a talk Judge Sykes gave on a number of occasions, starting in November 2012.
When I came to the Seventh Circuit in 2004, I had been a state court judge for 12 years—seven years on the trial-court bench in Milwaukee and five years on the Wisconsin Supreme Court. So I brought with me to the federal bench a deep appreciation for the distinct and autonomous role of the state courts, especially the state supreme courts.
Sometimes, however, the two court systems come into conflict; occasional disagreement is inevitable. But the federal courts have well-established doctrines that promote respect for the prerogatives of the separate judiciaries, along with procedural rules that keep us from stepping on each other’s toes.
Of course, the United States Supreme Court sits atop the judicial hierarchy, and when it decides an issue of federal law, the justices of the state supreme courts are bound by the Supremacy Clause to follow the Court’s decision, whether they agree with it or not. That was settled a long time ago in the venerable case of Martin v. Hunter’s Lessee (1816).
So it’s noteworthy when a modern state supreme court thumbs its nose at an unequivocal decision of the U.S. Supreme Court on a question of federal constitutional law. The doctrine of hierarchical precedent is so firmly established and well understood that a state supreme court’s open resistance to the authority of the U.S. Supreme Court on a question of federal law is practically unthinkable.
Think again. About 10 months ago, on December 30, 2011, the Montana Supreme Court issued an extraordinary decision in a case called Western Tradition Partnership v. Attorney General. The case raised a First Amendment challenge to a state law that prohibited corporations from independently spending money on political speech in state elections. The decision was extraordinary because, of course, the United States Supreme Court had resolved this very question just the year before in the famous Citizens United v. FEC case, striking down a nearly identical federal law. Yet the Montana court upheld the state law. The court purported to apply Citizens United, but the two decisions are irreconcilable.
Reaction from legal commentators was swift and incredulous. Even those who viscerally disagreed with Citizens United understood that the Montana Supreme Court had seriously overreached. The Supreme Court quickly stayed the Montana decision, and in June 2011, at the very end of its term, granted certiorari and summarily reversed the Montana Supreme Court. “There can be no serious doubt,” the Court held, that “Citizens United applies to the Montana state law” and all of Montana’s arguments “were already rejected in Citizens United, or fail to meaningfully distinguish that case.”
That a state supreme court would so flagrantly disregard the Supreme Court’s hierarchical authority is highly unusual in the modern era. The Court’s authority to review and decide state-court cases raising questions of federal law was conclusively established early in our nation’s history. As Justice Joseph Story explained in his famous opinion for the Court in Hunter’s Lessee:
Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself: If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitution.
Justice William Johnson concurred. He agreed with Justice Story’s emphasis on national uniformity, but he added that the Court’s role as the final decisionmaker is also grounded in its status as a federal institution with democratic legitimacy:
And another claim I may assert, in the name of the American people; in this court, every state in the union is represented; we are constituted by the voice of the union, and when decisions take place, which nothing but a spirit to give ground and harmonize can reconcile, ours is the superior claim upon the comity of the state tribunals.
In other words, the Supreme Court has a superior claim to interpretive authority by virtue of its status as a national institution—appointed by the nationally elected president and confirmed by the nationally representative Senate and pursuant to the Supremacy Clause.
Read more excerpts from Judge Sykes’ career
