Thomas: States Can Eliminate State Court Jurisdiction For “Claims Alleging that this Court’s Eighth Amendment decisions invalidated a sentence”

January 25th, 2016

At the very end of Justice Thomas’s dissent in Montgomery v. Louisiana, Justice Thomas offers a workaround for states that do not want to allow their state courts to invalidate Juvenile LWOP sentences, even for murderers. There is a lot of going on here, so I will unpack it.

Unlike the rule the Court announces today, this limitation at least reflects a constitutional principle. Only when state courts have chosen to entertain a federal claim can the Supremacy Clause conceivably command a state court to apply federal law. As we explained last Term, private parties have no “constitutional . . . right to enforce federal laws against the States.” Armstrong, 575 U. S., at ___ (slip op., at 4). Instead, the Constitution leaves the initial choice to entertain federal claims up to state courts, which are “tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States.” Osborn v. Bank of United States, 9 Wheat. 738, 821 (1824).

States therefore have a modest path to lessen the bur- dens that today’s decision will inflict on their courts. States can stop entertaining claims alleging that this Court’s Eighth Amendment decisions invalidated a sen- tence, and leave federal habeas courts to shoulder the burden of adjudicating such claims in the first instance. Whatever the desirability of that choice, it is one the Constitution allows States to make.

The Court’s rule says that state courts hearing post-conviction relief are required to apply Miller retroactively. But what if a Court does not offer post-conviction relief for certain claims. In particular, the state legislature abolishes state-court jurisdiction for “claims alleging that this Court’s Eighth Amendment decisions invalidated a sentence.” If there is no state-court jurisdiction for such a claim, Thomas writes, then the federal courts would then be able to entertain those claims.

But what about the supremacy clause, you ask? Aren’t state courts required to hear federal causes of action? (See my earlier post on Montgomery and the supremacy clause). As I explain in my article, State Judicial Sovereignty, state courts can only be compelled to hear federal causes of action when the legislature vests with them with competent jurisdiction to do so. As Thomas suggests, if a state eliminates this form of post-conviction relief, then the state courts would not have to alter sentences. The federal courts can “shoulder the burden of adjudicating such claims in the first instance.”

Justice Thomas always such a sophisticated sense for federalism in counterintuitive ways. I will be sure to cite this dissent in my article, which should be out in the Illinois Law Review later this year.