One often-overlooked aspect of the attention paid to U.S. Supreme Court opinions is that very few Court watchers ever read the lower court opinions the high Court is reviewing. That means, especially in a Supreme Court case that fails to generate a dissent, the justices can often make the lower court they are reversing look worse than is fair, because there may be nobody trying to give the lower court the benefit of the doubt or explain its side of things.
A case in point is James v. Boise, a summary reversal of the Idaho Supreme Court handed down by the U.S. Supremes a few weeks ago. Before I delve into the ruling, let me be clear that I think the Idaho court ruling was wrong and should have been reversed. But I don’t think the Idaho jurists were guilty of the particular stupidity or defiance that the U.S. Supreme Court imputed to them.
Background on the James Case
The context of James is simple enough—a plaintiff sued the City of Boise in Idaho state court to recover damages resulting from bites inflicted by a police dog after officers had mistaken the plaintiff for a burglar. So far, so good. The plaintiff sued the City under both state law and a federal law, 42 U.S.C. § 1983, which provides a cause of action against state and city officials who violate a person’s federal rights (in this case, said the plaintiff, the federal right to be free from unreasonable government force or seizure). The federal claim ended up losing in the Idaho trial and state supreme courts for reasons that need not detain us. But then the Idaho Supreme Court turned to the question of whether the City (the winning party) could get its attorney’s fees paid under a statutory companion to section 1983, section 1988, which says that in actions brought under section 1983, courts have the power to “allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” The wrinkle is that the U.S. Supreme Court had already observed, in a case 30 years ago in which fees under section 1988 were sought, Hughes v. Rowe, that “a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so,” none of which could be said about James’s federal action; even though it was not a winner, neither was it an unreasonable claim to assert. But the Idaho Supreme Court reasoned, en route to requiring James to pay for the City’s attorney’s fees: “Although the [U.S.] 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. Therefore, in cases filed in the Idaho state courts [as distinguished from federal courts] seeking to recover under 42 U.S.C. section 1988, the court has discretion in deciding to award attorney fees to the prevailing party, whether the prevailing party is the plaintiff or the defendant.”
Whoops. The U.S. Supreme Court said in summarily and unanimously reversing the Idaho Supreme Court:
Section 1988 is a federal statute. ‘It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.’ And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this 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 public mischiefs that would attend such a state of things would be truly deplorable.’ Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816). . . . The Idaho Supreme Court, like any other state or federal court, is bound by this Court’s interpretation of federal law. The state court erred in concluding otherwise.
The Idaho Court’s Error: A Different One From What the U.S. Supreme Court Assumed
Now I want to reiterate that the Idaho Supreme Court made a mistake—a bad mistake—and that even though the U.S. Supreme Court does not sit as a forum for error correction in individual cases, it was justified in granting review in this case to reverse. But I don’t think that the Idaho Supreme Court actually felt “[un]bound” by the U.S. Supreme Court’s interpretation of federal law, or that it had never heard of or failed to understand the teachings of Martin v. Hunter’s Lessee—the seminal 1816 ruling the U.S. Supreme Court invoked in chastising the Idaho judges.
What, then, is the error that the Idaho courts made? My guess is that the Idaho judges thought, albeit mistakenly, that the U.S. Supreme Court ruling in 1985 in Hughes v. Rowe was not an interpretation of the meaning and limits of section 1988, but a decision in which the U.S. Supreme Court was providing practical guidance, in its supervisory role within the federal judiciary, to lower federal courts about how discretion in attorney’s fees cases ought to be exercised. (Indeed, that may be why the Idaho Supreme Court referred to limitations imposed by the U.S Supreme Court “where such limitation[s] [are] not contained in the statute.”) Attorney’s fees are sometimes provided for by statute, and other times are awarded by federal and state courts pursuant to their inherent powers to administer justice fairly and run their own court systems. When a lower federal court issues attorney’s fees or sanctions against a party based on the judge’s inherent authority, the court is subject to review by the U.S. Supreme Court, which oversees the proper administration of all the federal judiciary. So the Idaho courts apparently believed that the Hughes decision was an exercise of the U.S. Supreme Court’s supervisory authority (which extends over the federal but not state courts), rather than an interpretation of what Congress meant and intended when it enacted section 1988 (which would be a reading of federal law that would bind both state and federal courts when those courts are being asked to apply that federal law.)
And—since I’m trying to be generous to the Idaho courts—I should point out the U.S. Supreme Court ruling in Hughes was itself a summary reversal of a lower federal court through an unsigned and relatively underdeveloped opinion. A careful reading of that opinion (and of the earlier cases on which it relied) should lead one to conclude that the Court was indeed opining on the meaning of section 1988, and not just announcing a rule of sound judicial administration. And for failing to appreciate this (as well as for failing to be clear when it identified the limits on U.S. Supreme Court “authority”), the Idaho court should be faulted. But failing to get the meaning of a short per curiam (unsigned) summary interpretation of a federal fee statute is a far cry from failing to understand that state courts are bound by the U.S. Supreme Court’s interpretations of federal law. (To be sure, some state court judges, such as Alabama Supreme Court Justice Roy Moore, may be guilty of the latter misapprehension, but I think we should be reluctant to attribute such wrongheadedness to other state jurists when there are other ways to understand their actions.
Tying Up James’s Loose Ends
Since we have taken time to examine James carefully, we should address two additional questions raised by this episode. First, why might the Idaho Supreme Court (mis)rely on section 1988 when (as I noted before) state courts have other statutes and their inherent powers that they can invoke in deciding to make attorney’s fee awards? Part of the general answer to such a question may be (and this might be what got the U.S. Supreme Court’s ire a bit) that when a state court makes use of federal law, it shields itself from political backlash by those who don’t like its decision. Since federal law is supreme (as the U.S. Supreme Court just reminded us), state court judges who use federal law can act as if they had no choice to do what they did (an especially ironic stance in this case, where the state court judges interpreted federal law as giving them a lot of discretion.)
Finally, we should linger a moment on the U.S. Supreme Court’s explanation (deriving from Martin v. Hunter’s Lessee) about why all lower courts—state and federal—must abide by the Supreme Court’s interpretations of federal law. If this were not the rule, the Court tells us, “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 public mischiefs that would attend such a state of things would be truly deplorable.”
Fair enough—the value in having federal law mean the same thing in all parts of the country is pretty obvious. But notice that we do currently tolerate a great deal of disuniformity in the meaning of federal law all the time. Splits between the different U.S. Courts of Appeals over the meaning of federal statutes are often tolerated for years if not decades. No one suggests that the Supreme Court has an obligation to address all such splits, even all such important splits. (Justice Byron White apparently felt the Court had a near-absolute obligation to find and resolve all splits, but as far as I know he was relatively lonely in this regard.) In fact, most splits never get addressed by the U.S. Supreme Court, even though the Supreme Court’s caseload has been cut in half over the last generation, and the Court has the capacity to iron out far more splits than it chooses to. So while uniformity of federal law is important, we ought not to overstate things.
If the Idaho court used section 1988, it should use it appropriately. We all swear to uphold the laws and constitution of the United States, and the Idaho court’s judges are not the exemption.