Walsh on Supreme Court Review of State Criminal Prosecutions

Kevin C. Walsh, University of Richmond School of Law, has posted In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions.  Here is the abstract:

It seems so obvious that the Supreme Court needs to have appellate jurisdiction to review state criminal prosecutions that involve questions of federal law that everybody assumes the Court has always possessed this jurisdiction. But it was not always so. 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 rejecting federal-law-based claims of right, immunities, or defenses.

Section 25 is one of the most important provisions of the original judiciary act that gave enduring institutional shape to a federal court system incompletely constructed by Article III. In the landmark 1821 case of Cohens v. Virginia, the Supreme Court held, as a constitutional matter, that the Supreme Court could engage in appellate 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 the Court categorically lacked statutory jurisdiction over state criminal prosecutions under Section 25 was neither raised nor decided. And for almost two centuries nobody has thought to examine the issue despite the obvious importance of correctly understanding this key provision of the foundational statute for federal jurisdiction.

Building on commentaries by a contemporary critic of Cohens, the astute and once-eminent (but now obscure) Charles Hammond of Ohio, this article offers a combination of neglected arguments and newly discovered evidence tending to establish that Section 25 did not encompass Supreme Court appellate review of state criminal prosecutions. This article’s rediscovery of civil-only Section 25 and its recovery of Charles Hammond’s constitutional vision not only have immediate implications for ongoing scholarly debates over the extent of congressional control over federal jurisdiction, but also have potentially wide-ranging import for generating new insights into the liquidation of Article III and the constitutional construction of the federal judiciary.