When Does the U.S. Supreme Court Review State Supreme Court Decisions? 

Next week marks the start of the U.S. Supreme Court’s new term. As usual, some of the appeals on the Court’s docket will come from state courts of last resort.

When can the Supreme Court weigh in on an issue already decided by a state’s highest court? The answer is not straightforward. Since the country’s founding, state courts have had the final say on questions of state law. But they share responsibility with federal courts for interpreting and applying federal law. As a result, competing concerns — ensuring that state courts correctly and consistently apply federal law and respecting their autonomy — have led to a complex set of rules for when the Supreme Court takes appeals from the state courts.

The rules stem both from federal legislation and the Supreme Court’s own interpretive guidance, developed in centuries of opinions.

General rule

The Constitution provides a high-level foundation for the Supreme Court’s jurisdiction over appeals directly from state courts, allowing for review of state decisions involving issues related to federal statutes, treaties, or constitutional law. Congress elaborated on the specifics in the Judiciary Act of 1789, which it has repeatedly updated over time. As a general matter, today’s version provides that the Supreme Court may review appeals from “final judgments” issued “by the highest court of a State in which a decision could be had” that raise a question under the same three areas of federal law. This statute applies to both civil and criminal appeals.

The “highest court of a State” usually means the state’s supreme court, but an appeal from a lower court can qualify if the appealing party has exhausted all available appellate options within the state system. For example, the Supreme Court has accepted review from intermediate courts where the state high court’s denial of a request to appeal barred further state review or where state procedural rules gave no additional right to appeal within the state.

Similarly, the “final judgment” rule typically requires a case to be fully resolved in the state courts, not subject to ongoing proceedings. The Supreme Court has counted as “final judgments,” however, certain circumstances where the federal issue has been finally decided, but other aspects of the case are still in progress. In particular, the Court may hear a state appeal where the federal issue would survive and require a decision regardless of the outcome of the other parts, would be precluded from review at a later point (such as because the issue will be mooted), “might seriously erode federal policy” if not immediately reviewed, or where resolution of the federal issue would conclude the remaining proceedings.

Adequate and independent state grounds

Appeals from state courts frequently involve both state law and federal law questions. If the decision below rested on an “adequate and independent state ground,” the Supreme Court may not review it.

The Supreme Court has interpreted its jurisdiction this way to avoid issuing advisory opinions — judicial guidance offered when an actual case is not at stake — in violation of a separate jurisdictional bar the Court has recognized since its founding. If the state court would reach the same result based on state law in any event, weighing in on the federal issue would be purely advisory, the reasoning goes.

What counts as an “adequate and independent state ground” for a state court decision? The Supreme Court makes that determination itself and has provided longstanding guidance.

To be “adequate,” the state basis must have “fair support” or, put another way, not be “plainly untenable.” The basis also must be broad enough on its own to sustain the judgment. An “independent” state basis is not dependent on, or “interwoven with,” federal law. For example, it’s not enough for a state court to cite state cases as support for its ruling, if those state cases are themselves applications of federal law. Similarly, “where a state court has ‘felt compelled by what it understood to be federal constitutional considerations to construe and apply its own law in the manner it did,’” the Supreme Court has said that does not qualify. In practice, this rule means that a state court decision that interprets the state’s constitution in “lockstep” — or in adherence — with the federal Constitution may be more vulnerable to Supreme Court review.

Even with the Court’s longstanding guidance, determining whether a state decision is based on an adequate and independent state ground is not always clear-cut. The Supreme Court in Michigan v. Long introduced an approach to resolving that ambiguity that the Court has used for the last forty years. When a state ruling “fairly appears to rest primarily on federal law, or to be interwoven with the federal law,” the Court will assume there is no adequate and independent state ground, unless the state court made a “plain statement” clearly indicating otherwise. Some justices have criticized this presumption as making it harder for states freely to develop their own laws. Under the framework, a state court would have to anticipate that references to federal law could be viewed as ambiguous by the Court and so would trigger the requirement expressly to convey that the decision rests on an adequate and independent state ground. Nonetheless, a majority of the Court has followed the “plain statement” approach in most ambiguous cases since Long. On occasion, however, where there was “considerable uncertainty as to the precise grounds” for the state decision or the state court did not issue an opinion, the Court has vacated the decision and remanded to the state court for clarification.

State procedural rules

Sometimes a state court rejects a federal claim based on a state procedural rule — for example, it may rule the claim was untimely or waived — rather than considering the substance of the claim. A procedural rule may also serve as an adequate and independent state ground that precludes Supreme Court review of the federal question.

In deciding whether a state procedural rule is an “adequate” ground, the Supreme Court generally has focused on consistency of application. A state procedural rule typically qualifies if it is “firmly established and regularly followed” and has been applied neutrally, not in a way that avoids or “operates to the particular disadvantage” of federal claims. These criteria, the Court has indicated, are intended to protect claimants’ procedural due process rights and the supremacy of federal law.

In line with those concerns, the Court has recognized rare circumstances where the application of even a “generally sound” procedural rule “renders the state ground inadequate to stop consideration of a federal question.” These “exceptional” cases have included applications that are “novel” or “abruptly depart” from prior interpretations, or where the claimant’s compliance with the rule, although not perfect, is “sufficient” to serve the state’s procedural interest. They also have tended to involve more consequential federal claims, asserting constitutional rights.

New federal question

Occasionally, a party believes the highest state court’s decision raises a new federal question. Will the Supreme Court review the case even though that issue was not asserted below? The general rule is no.

Out of respect for state courts and desire for a developed appellate record, the Court ordinarily requires a federal claim to have been addressed by, or presented to, the state court whose decision is being appealed, although a party’s arguments in support of that claim can vary. While the Court’s recent rulings have tended to treat this requirement as prudential — or excusable under the circumstances of particular cases — earlier decisions viewed it as jurisdictional, and the question has never actually been settled by the Court.

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The adequate and independent state ground doctrine provides an incentive for state courts to develop and apply state constitutional law distinctly from federal law. In the event a losing party appeals to the U.S. Supreme Court a decision based on state law that clearly and expressly departs from federal law, the Supreme Court should decline and the state court should have the last word on the issue.

Sarah Kessler is an advisor to State Court Report.

Suggested Citation: Sarah Kessler, When Does the U.S. Supreme Court Review State Supreme Court Decisions?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/when-does-us-supreme-court-review-state-supreme-court-decisions.