Supreme Court reaffirms supremacy over state courts, and why that matters now

Greg Nash

Last week, the Supreme Court in James v. City of Boise unanimously and summarily reversed a decision by the Idaho Supreme Court wherein the state high court asserted that the U.S. Supreme Court lacked the power to limit state court power to award attorney's fees to a prevailing party on a federal claim. At first blush, the U.S. Supreme Court's opinion might seem of little interest and practical importance: The Idaho Supreme Court was plainly wrong, and the point at issue seems narrow. Examination of the state supreme court's opinion highlights that the state court was urging a particular limitation on the U.S. Supreme Court's power to limit the state judiciaries' discretion, especially based upon cases appealed from lower federal courts (and not state courts). Seen in this light, the Supreme Court's decision in James has ramifications for another state judiciary that has asserted that it may not be bound by governing Supreme Court precedent: Alabama Chief Justice Roy Moore's administrative order to the Alabama Probate Courts not to issue marriage certificates to same-sex couples, even in the wake of the Supreme Court's decision in Obergefell v. Hodges finding a constitutional right to same-sex marriage.

James involved an action by a private citizen, Melene James, against members of the Boise Police Department and the city of Boise, Idaho. James brought suit in state court under a federal civil rights statute — Section 1983 of title 42 of the United States Code — that entitles a person to relief when a state actor violates his or her federal constitutional rights. The Idaho Supreme Court affirmed the state trial court's ruling against the plaintiff, including the award of attorney's fees in favor of the defendants.

The U.S. Supreme Court concerned itself only with the attorney's fees portion of the state supreme court decision. A provision of federal law — Section 1988 of title 42 of the United States Code — authorizes the awarding of attorney's fees to prevailing parties in section 1983 cases. In a 1980 opinion, the U.S. Supreme Court interpreted Section 1988 to allow a defendant to collect attorney's fees only where the plaintiff's case was "frivolous, unreasonable, or without foundation." Nevertheless, the Idaho Supreme Court awarded attorney's fees without finding that the plaintiff's case was frivolous, unreasonable or without foundation. Indeed, the state high court expressly disclaimed the notion that the U.S. Supreme Court's interpretation of Section 1988 was binding on it, or more generally, on the Idaho state courts. The state court first observed that "[t]he statute does not contain any such limitation. It permits the award of attorney fees to the prevailing party in the discretion of the court." The state high court noted that the Supreme Court's interpretation of Section 1988 arose out of "appeals from cases in federal district courts" as opposed to state courts, and then claimed: "Although the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute." The Idaho Supreme Court thus acknowledged governing Supreme Court precedent, but concluded that it wasn't obligated to follow that precedent.

At a broad level, the Idaho Supreme Court was plainly wrong. The Constitution declares federal law the supreme law of the land. And precedent going back two centuries makes clear that the U.S. Supreme Court is the definitive expositor of that supreme law, and that its interpretations are binding on the courts of the various states.

It is informative, however, to get a handle on exactly what the Idaho Supreme Court purported to hold. As an initial matter, the Idaho Supreme Court certainly did not assert that it was not bound to follow governing federal statutes. The state court applied Section 1983, and purported to apply Section 1988's fee-shifting provision (though under its own interpretation).

Second, one might think that the state court took the position that the U.S. Supreme Court does not issue binding rulings on matters that go beyond the plain language of statutes. But other portions of the Idaho Supreme Court opinion make clear that that is not the case. The Idaho Supreme Court allowed the police officers to invoke "qualified immunity" — that is, to argue that they were immune from the plaintiff's lawsuit because they did not violate any of the plaintiff's constitutional rights that were "clearly established" at the time of the incident in question. But "qualified immunity" is not the product of any congressional statute; it is, rather, a judge-made creation. Yet the Idaho Supreme Court does not hesitate to follow federal precedent — and, in particular, Supreme Court precedent — on qualified immunity.

Third, one might think, more narrowly, that the Idaho Supreme Court meant to challenge the U.S. Supreme Court's power to issue binding rulings on judicial discretion in the context of federal statutory regimes. Here, again, however, other portions of the Idaho Supreme Court opinion belie this understanding. A state officer may lay claim to qualified immunity if either (1) the officer did not in fact violate the plaintiff's constitutional rights, or (2) any such rights that may have been violated were not clearly established at the time of the alleged incent. In a 2009 case, Pearson v. Callahan, the U.S. Supreme Court held that lower courts have discretion to address first either of those two inquiries. Tellingly, the Idaho Supreme Court in James invoked Pearson v. Callahan specifically for the "discretion" to decide the case based upon the second inquiry.

This leaves a reading of the Idaho Supreme Court's opinion that the U.S. Supreme Court did not effectively limit the state courts' discretion to award attorney's fees because the U.S. Supreme Court announced its precedent in cases originating in the lower federal courts, not state courts. The state high court expressed a disagreement with the U.S. Supreme Court over the interpretation of the statute, and concluded that (since the U.S. Supreme Court precedent was not binding) it would adhere to its own interpretation. This argument echoes a point made by Alabama Chief Justice Moore, who asserted that, insofar as the Supreme Court's Obergefell decision arose out of a regional federal circuit, its scope did not necessarily extend beyond the states in that region. But this assertion is incorrect: Supreme Court holdings are binding on all lower courts, state and federal. The Supreme Court need not decide the same issue again and again with respect to each lower court.

The Idaho Supreme Court opinion in James goes farther still, suggesting that the U.S. Supreme Court lacks the power to limit the state courts' discretion to award attorney's fees. This argument seems to be grounded in the notion that state courts enjoy inherent power — not subject to U.S. Supreme Court regulation — to shift fees. Bolstering this view somewhat is some evidence that Congress enacted Section 1988 in response to a 1975 Supreme Court case — Alyeska Pipeline Service Co. v. Wilderness Society — holding that the federal courts lacked inherent authority to shift attorney's fees. The problem here is that Congress enacted section 1988 without limiting its application to the federal courts, and indeed the Idaho Supreme Court acknowledged Section 1988's applicability in the case before it. This fallback on state judicial independence in the face of clearly applicable federal law again sounds akin to the argument advanced by Moore in his administrative order.

The Supreme Court in James repeated the sage point offered by famed Justice Joseph Story 200 years ago: If state courts were permitted to disregard the Court's rulings on federal law, "the laws, the treaties, and the Constitution, of the United States would be different in different states; and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states." The Supreme Court is the final expositor of federal law, and the rule of law expects lower courts — state as well as federal — to recognize this, whether the lower court agrees with the Supreme Court's reasoning or not, and whatever the magnitude of the issue.

Nash is professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.