Why does the Supreme Court use different language for remands to state court and federal court?

The former uses "further proceedings not inconsistent with this opinion" and the latter uses "further proceedings consistent with this opinion."

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Last week, I blogged about a persnickety question that Supreme Court practitioners often litigate: when does a Supreme Court judgment become effect. In this post I will raise another curiosity of Supreme Court practice: the Justices use different language when a case is remanded to state court and federal court.

Consider the language used this term in Espinoza v. Montana Department of Revenue. This case reversed the decision of the Montana Supreme Court. The opinion concluded:

The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Contrast that language with the conclusion in Liu v. SEC. This case reversed a decision from the Ninth Circuit:

For the foregoing reasons, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with this opinion.

State decisions are "remanded for further proceedings not inconsistent with this opinion." Federal decisions are remanded for "further proceedings consistent with this opinion." The latter language seems stricter than the former language. Perhaps the Court wishes to give the state courts more leeway in implementing a Supreme Court decision. Federal courts, in contrast, have less latitude to implement a Supreme Court decision.

I don't know how or when this practice arose. But it seems to subtly account for basic principles of federalism. Of course, under Martin v. Hunter's Lessee, state courts are bound by the Supreme Court's judgments. At least the Justices can be nice about it.

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  1. Could it possibly be that the state courts are also dealing with State Constitutions, hence the "not inconsistent" while the Federal courts aren't? Kind an 11th Amendment fig leaf of sorts?

    Or something along that line?

    1. That is certainly why I've thought this difference is present. A state supreme court dealing with something like the exclusionary rule or the death penalty could go ahead and say that the defendant still wins under state constitutional law rather than their initial federal constitutional ruling (assuming that was reversed by SCOTUS).

      Of course the people of the state could then say that the state supreme court was wrong. And amending state constitutions is generally much easier than federal amendments.

      1. I think that's pretty much it: The state courts have more wiggle room, they don't have to allow state officers to do something just because the Supreme court says the Constitution permits them to do it.

  2. States may have other tools to reach the original conclusion that isn't inconsistent with the U S Constitution.

  3. Incidentally, the motions to issue the judgment forthwith were both denied this morning.

    https://www.supremecourt.gov/orders/courtorders/072020zr_l53m.pdf

  4. There's a difference in authority to tell these other courts what to do. USSC can tell other federal courts what to do, full stop. They can tell the various state courts not to take actions that violate federal law (including the federal Constitution).

  5. "The former language seems stricter than the latter language."

    You have the words former and latter reversed in this sentence from the penultimate paragraph.

    1. Thank you Propagandist!
      Early onset senility pushed off for another day

  6. Seems to me it's just that federal courts are actually subordinate, state courts are subordinate only on the question considered. A nice touch from SCOTUS, for sure.

    I've definitely seen some discussion of this difference before, and I'd have put good odds on it being on this blog in the past. But Google isn't finding it in a very quick attempt.

  7. I've always thought it was simple federalism. The Supreme Court, when reviewing a state judiciary case, is almost always doing so on federal constitutional grounds. Many times of remand the state Supreme Court decides it was right all along but just affirms on then state constitutional grounds. That would not be "inconsistent" with the Supreme Court ruling, but some might not consider it to be "consistent" with such a ruling. Minor, subtle difference, but plays out much different in effect.

  8. Martin v. Hunter's Lessee was of course begging the question. The U.S. Supreme Court said it had the right to reverse the Supreme Court of Virginia; Virginia disagreed. Martin settled that question only if you agreed in advance that the federal court was right. If you think the Virginia court was right, Martin didn't settle anything.

  9. It certainly goes back as far as the 1628 charter of the Massachusetts Bay Company. The charter required that the ordinances enacted by the governor and assistants be consistent with the laws of England.

    For 60 years and more the Bay Colony enacted all sorts of laws that would never have passed seals in England and legislated on all sorts of matters neither Parliament not the King of England would never have allowed like: passing ordinances in restraint of appeals to English courts, attempting to separate the church from the state, abolishing the aristocracy, limiting corporal punishment, making all residents equal under the law, abolishing feudal tenures and establishing popular sovereignty.

    The colonial government always argued such ordinances were not inconsistent with the laws of England either because the ordinances did not purport to apply in England or because English law was actually silent on the matter being legislated.

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