The decision in Bush v. Gore and particularly Chief Justice Rehnquist's concurring opinion were widely criticized for their unwarranted intrusion upon the "authoritative" status of the Florida Supreme Court in determining the meaning of Florida election law. This Article rejects the merits of that criticism. It proposes the thesis that the Supreme Court has ancillary jurisdiction to review state-court determinations of state law in cases where the Constitution or ftderal law imposes a duty of fidelity to prior state law (t1) and the claim is that the state court materially and impermissibly departed from that law at a later point in time (t2). Using Bush v. Gore as a vehicle and building upon an examination of the adequate nonfederal ground doctrine and the implications of the Supremacy Clause, this Article establishes that some Supreme Court reexamination of state-court determinations of state law "antecedent" to the federal claim is not only indisputable, but quite familiar. It goes on to argue for independent judgment, rather than the more familiar 'fair support" standard, as the ultimate measure of the Supreme Court's jurisdictional authority to reexamine state law, supporting this normative assertion with extensive evidence from Supreme Court practice since the founding. The Article concludes by suggesting that the distinction between the two standards is important to litigants and should (but may not) be important to the Court because, contrary to critics' claims, in appropriate cases – Bush v. Gore among them – independent judgment can serve, rather than undermine, the values of "Our Federalism."
Henry P. Monaghan,
Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/164