State Judicial Sovereignty

In our “dual sovereignty” with a dual judiciary, it is the received wisdom that Congress has plenary power over the state courts through concurrent, mandatory, and exclusive jurisdiction. Congress, the argument goes, can allow, require, or forbid state courts from hearing federal causes of action. The Supreme Court, however, has sketched out an important but underappreciated limiting principle of this Congressional power, grounded in the separation of powers and state autonomy. I refer to this doctrine as state judicial sovereignty. Every effort by Congress to control the jurisdiction of the state courts must respect the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, causes of action. Concurrent, mandatory, and exclusive jurisdiction statutes can exist only within these bounds of state judicial sovereignty.
This Article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’ efforts to use or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents.
First, state judge sovereignty refers to the constitutional obligations of state judges to hear federal causes of action, so long as the state vested them with adequate jurisdiction. Second, state jurisdictional sovereignty provides states with the autonomy to vest their courts with jurisdiction, but prohibits them from discriminating against federal claims by withdrawing pre-existing jurisdiction. Third, state judge sovereignty places a limit on the federal government’s power to control the state courts, based on the Supreme Court’s anticommandeering and necessary-and-proper jurisprudence following NFIB v. Sebelius.
The bounds of federal authority over how state courts conduct their business have remained largely undefined for over 200 years. This Article aims to identify these boundaries and demonstrate the limits of Congress’ powers over state courts.

The full text of this Article is available to download as a PDF.