The Federal Supremacists Write a Ticket Good for One Ride in Williams v. Reed

But Justice Thomas is still the only Justice who (correctly) concludes that Haywood v. Drown (2009) was incorrectly decided.

Last week, I taught the Supreme Court's anti-commandeering cases in Constitutional Law. The precedent can be stated simply. New York v. United States held that Congress cannot compel state legislatures to enact legislation. Printz v. United States held that Congress cannot compel state executive branch officials to enforce federal law. And NFIB v. Sebelius held that Congress cannot compel people to engage in economic activity. However, Congress can compel state judges to enforce federal law. Article VI, Clause 2 maintains that "the Judges in every State shall be bound" by the supreme law of the land. In Printz, Justice Scalia acknowledged that since the framing, state judges have enforced federal law. 

A student asked if Congress could commandeer state courts, as well as state judges. The answer to this question is complex. In my view, the answer should be no. I developed this thesis in a 2016 article in the Illinois Law Review, titled State Judicial Sovereignty. In short, if a state legislature creates a court of true general jurisdiction, then a state judge can hear any federal cause of action. But if a state legislature divests a state court of jurisdiction over some federal cause of action, the action cannot be heard. Congress cannot commandeer the state legislature to vest their courts with jurisdiction, and the Supremacy Clause does not empower the courts to establish that jurisdiction. Remember, state court jurisdiction comes from the state legislature, and not the Constitution.

Regrettably, the Supreme Court rejected my approach in Haywood v. Drown (2009). In this case, which most people have never heard of, New York divested its courts of jurisdiction to hear damage claims against correction officials. As a result, those courts would have lacked jurisdiction to hear Section 1983 suits against prison guards. Justice Stevens's majority opinion held that this jurisdictional statute was actually an attempt to immunize prison officials under Section 1983. Haywood was 5-4. Justice Thomas wrote the dissent, which was only joined in part by Chief Justice Roberts, and Justice Scalia and Alito. The quartet agreed that New York should prevail under longstanding precedent.  But only Justice Thomas was willing to go a step further and say those precedents were wrong. In short, even if state judges are bound to enforce federal law, state legislatures have complete and total control over the jurisdiction of the state courts. If a plaintiff does not like those rules, he can bring a Section 1983 suit in federal court. It has long bothered me that Justice Scalia did not join all of Justice Thomas's dissent in Haywood, but such is life. (Update: I previously wrote the case was 8-1, which it sort of was for the issue I was talking about, but it is better to call it 5-4.)

Fast-forward to the present. On Friday, the Supreme Court decided Williams v. Reed. On the holding, the Court split 5-4. Justice Kavanuagh's majority opinion held that state courts must allow a Section 1983 claim to proceed where a state exhaustion requirement "in effect immunizes state officials" from liability. In my view, this case goes beyond Haywood. The Court expands federal court oversight of state court jurisdiction. 

I see this decision as vindicating the supremacy of federal courts. You may recall that Chief Justice Roberts, Justice Kagan, and Justice Kavanaugh dissented in Mallory v. Norfolk Southern. I see that position as parallel to Williams. Of course, Justices Sotomayor and Jackson joined the majority, though I suppose the context was different enough. Yet I'm not sure that the Chief was fully on board with the Haywood expansion. 

Justice Kavanaugh explains how limited this opinion was. He stresses the Court reverses on a "narrow ground" and "emphasize[s]" the opinion is "narrow." Kavanaugh writes that his decision "resolves this dispute but is careful not to go beyond this Court's existing precedents." You know a five-member majority is fragile when this sort of language is added. Chief Justice Roberts assigned this opinion to Justice Kavanaugh. I suspect the Chief then conditioned his joining on this sort of limiting language. The federal supremacists issued a ticket good for one ride.

Justice Thomas wrote the Williams dissent, which had two parts. Part I was joined only by Thomas. And Part II was joined by Thomas, as well as Justices Alito, Gorsuch, and Barrett. Part II argues that the majority misconstrued, and indeed expanded Haywood. I find that analysis quite compelling. I also think that the issue was waived, and that Justice Kavanaugh botched the facial/as-applied analysis. (I have to imagine this part was very important for Justice Barrett's join, especially in light of NetChoice.) 

But Justice Thomas was alone in Part I, regrettably. Thomas repeats his call that Haywood was wrongly decided based on "first principles." (Chief Justice Rehnquist used this phrase in Lopez.)

This case is straightforward under first principles. Our federal system gives States "plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action." Haywood v. Drown, 556 U. S. 729, 743 (2009) (THOMAS, J., dissenting). The Constitution allows States to hear federal claims in their courts, but it does "not impose a duty on state courts to do so." Id., at 747. Thus, "[o]nce a State exercises its sovereign prerogative to deprive its courts of subject-matter jurisdiction over a federal cause of action, it is the end of the matter as far as the Constitution is concerned." Id., at 749. . . .

Our precedents also err in establishing the requirement at issue here—that state jurisdictional rules be "neutral," even in the absence of a directly conflicting federal law. See infra, at 5. The Supremacy Clause does not of its own force"constrai[n] the States' authority to define the subject-matter jurisdiction of their own courts." Haywood, 556 U. S., at 750 (THOMAS, J., dissenting).

Thomas also explains that plaintiffs are free to bring suit in federal court. This case is much ado about little.

Justice Thomas also wrote a glorious footnote that takes a potshot at Charles Reich. I suspect Justice Alito regrets not joining this footnote about his former constitutional law professor. (Alito has many times told the story about how Reich abandoned his class in the middle of the semester to go to San Francisco.)

* Petitioners' suit implicates other precedents that may not withstand scrutiny. I doubt that petitioners have a true due process interest in "mere Government benefits and entitlements." Axon Enterprise, Inc. v. FTC, 598 U. S. 175, 201, n. 3 (2023) (THOMAS, J., concurring). Tellingly,the Court's original expansion of the Due Process Clause into this context came without meaningful legal analysis. The Court simply highlighted the social importance of "entitlements," which had come to make up "[m]uch of the existing wealth in this country," and which only the poor had been theretofore unable to effectively enforce. See Goldberg v. Kelly, 397 U. S. 254, 262, and n. 8 (1970) (citing C. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245, 1255(1965); C. Reich, The New Property, 73 Yale L. J. 733 (1964)). As Justice Black recognized at the time, it "strains credulity" as a textual matter "to say that the government's promise of charity to an individual is property" protected by the Fourteenth Amendment. 397 U. S., at 275 (dissenting opinion).

Amen.

Thomas also casts doubt on whether Section 1983 even creates a cause of action. Here, Thomas cites an important new article by Tyler Lindley.

Moreover, further examination may be required as to whether §1983 can provide petitioners a cause of action in any event. Cf. T. Lindley, Anachronistic Readings of Section 1983, 75 Ala. L. Rev. 897, 900–901 (2024) (contending that, as originally understood, §1983 did notprovide a freestanding cause of action).

This statement is consistent with Thomas's opinion in DeVillier v. Texas, and his dissent in Wilson v. Hawaii. These cases recognize that the Constitution does not create positive causes of action for relief. 

Conservatives routinely call on Justice Thomas to retire. Would any replacement continue to make such important and principled contributions to the law? Does anyone else have the right combination of courage and curiosity?  I am doubtful.