Delaware v. Van Arsdall, 475 U.S. 673 (1986)

Author: John Paul Stevens

Show Summary

Delaware v. Van Arsdall, 475 U.S. 673 (1986)

JUSTICE STEVENS, dissenting.

The Court finds the way open to reverse the judgment in this case because

[t]he opinion of the Delaware Supreme Court, which makes use of both federal and state cases in its analysis, lacks the requisite "plain statement" that it rests on state grounds.

Ante at 678, n. 3.{1} In so holding, the Court continues down the path it marked in Michigan v. Long, 463 U.S. 1032, 1037-1044 (1983), when it announced that it would henceforth presume jurisdiction to review state court judgments absent a "plain statement" that such judgments rest on state grounds.{2}

Despite the directness of the route chosen, today’s destination was not foreordained. Unlike Michigan v. Long, this case concerns whether the Court should presume jurisdiction to review a state supreme court’s remedy for a federal constitutional violation. Since courts have traditionally enjoyed broad discretion to fashion remedies -- even remedies forbidding otherwise lawful acts -- once a constitutional violation has been proved,{3} the more logical direction would have been to presume that a state court is merely exercising its normal supervisory power over state officials unless it clearly states that federal law requires a particular procedure to be followed. The Court’s contrary presumption works a further advancement of its own power, but it flouts this Court’s best traditions: it deviates from our normal approach to questions of subject matter jurisdiction, and it departs from our longstanding practice of reserving decision on federal constitutional law. Even considered purely from the standpoint of managing our own discretionary docket, the Court’s presumption includes a selection bias inconsistent with the lessons of history as revealed in this Court’s statutory jurisdiction over the judgments of state courts. Finally, the Court’s willingness to presume jurisdiction to review state remedies evidences a lack of respect for state courts, and will, I fear, be a recurrent source of friction between the federal and state judiciaries.


The rules that govern this Court’s jurisdiction to review state court judgments should, of course, be consistent with the jurisdictional principles that govern the entire federal judicial system. Indeed, because the example that this Court sets for the entire system inevitably affects the way in which all federal judges tend to evaluate their own powers, we have a special obligation to make sure that our conclusions concerning our own jurisdiction rest on a firm and legitimate foundation.

In origin and design, federal courts are courts of limited jurisdiction; they exercise only the authority conferred on them by Art. III and by congressional enactments pursuant thereto. See Bender v. Williamsport Area School Dist., ante at 541, and cases cited therein. Like all other federal courts, this Court has only the power expressly given it. Because it is our inescapable duty -- in contrast to that of the political branches -- to construe authoritatively the very instruments which define and limit that power, the Court early in its history wisely adopted a presumption that every federal court is "without jurisdiction" unless "the contrary appears affirmatively from the record." King Bridge Co. v. Otoe County, 120 U.S. 225, 226 (1887). Accord, Thomas v. Board of Trustees, 195 U.S. 207, 210 (1904); Minnesota v. Northern Securities Co., 194 U.S. 48, 62-63 (1904). That presumption is just as "inflexible" in this Court as in any other federal court.{4}

Even for cases unquestionably within this Court’s subject matter jurisdiction, we have disclaimed any pretension to reach questions arising under the Federal Constitution when an alternative basis of decision fairly presented itself. Thus, in one of the most respected opinions ever written by a Member of this Court, Justice Brandeis wrote:

The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

* * * *

. . . The Court will not pass upon a [federal] constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

Ashwander v. TVA, 297 U.S. 288, 346-347 (1936) (concurring opinion).{5}

The Court has remained faithful to these basic tenets when it is reviewing cases that arise in the federal system. See Bender v. Williamsport Area School Dist., ante at 545-549; Regents of University of Michigan v. Ewing, 474 U.S. 214, 222-223 (1985). Ironically, however -- and contrary to tradition{6} -- the Court has taken a different stance when it is asked to review cases coming to us from state courts. Although

[w]e cannot perform our duty to refrain from interfering in state law questions and also to review federal ones without making a determination whether the one or the other controls the judgment,

Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945), the jurisdictional precepts that serve us so well in reviewing judgments rendered in federal court merit observance in review of state court judgments too. Abjuring the federal analogy, the Court unwisely marks for special scrutiny the decisions of courts to which I believe it owes special respect.


The jurisdictional presumption that the Court applies -- and extends -- today harbors a hidden selection bias that, in turn, reveals a disturbing conception of this Court’s role. Because a state ground can only support a judgment consistent with a federal claim, the Court’s jurisdictional presumption operates to expand this Court’s review of state remedies that overcompensate for violations of federal constitutional rights. Historically, however, such cases have been outside the province of this Court. For well over a century the Judiciary Act of 1789 denied this Court authority to review state court judgments upholding federal claims.{7} By conferring no power to review these judgments, "the first Congress assembled under the Constitution" -- whose Members had "taken part in framing that instrument," Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888), in addition to having enacted the First Judiciary Act -- codified their conviction that this Court’s overriding concern was to ensure that state courts respect federal rights. Only in 1914 did Congress authorize this Court to take jurisdiction over state court judgments upholding claims of federal constitutional right, Act of Dec. 23, 1914, 38 Stat. 790, and even that legislation reflected an understanding that the Court’s role is primarily to vindicate such rights.{8} Most of the bills on this subject gave

the litigant an absolute right to appeal or take a writ of error to the Supreme Court . . . even though the decision is in favor of a claim of right under the Federal Constitution.

S.Rep. No. 161, 63d Cong., 2d Sess., 2 (1914). Rather than adopt these bills, which would have placed uniformity of federal law on a par with vindication of federal rights by making review of such judgments at least nominally mandatory, Congress

substitute[d] a grant of jurisdiction to the Supreme Court of the United States to issue a writ of certiorari or otherwise to review the decision of the State court.

Ibid.Compare Act of Sept. 24, 1789, § 25, 1 Stat. 85-86, with Act of Dec. 23, 1914, 38 Stat. 790. Thus, although this Court now has the power to review decisions defending federal constitutional rights, the claim of these cases on our docket is secondary to the need to scrutinize judgments disparaging those rights.{9} When the state court decision to be reviewed is ambiguous, and it is not even clear that the judgment rests on a federal ground, the basis for exercising jurisdiction is even less tenable.


The Court’s decision to monitor state court decisions that may or may not rest on nonfederal grounds is not only historically disfavored, but risks the very confrontations and tensions a more humble jurisdictional stance would avoid. The presumption applied today allocates the risk of error in favor of the Court’s power of review; as a result, over the long run, the Court will inevitably review judgments that, in fact, rest on adequate and independent state grounds. Even if the Court is unconcerned by the waste inherent in review of such cases, even if it is unmoved by the incongruity between the wholly precatory nature of our pronouncements on such occasions and Art. III’s prohibition of advisory opinions, it should be concerned by the inevitable intrusion upon the prerogatives of state courts that can only provide a potential source of friction, and thereby threaten to undermine the respect on which we must depend for the faithful and conscientious application of this Court’s expositions of federal law.

Less obvious is the impact on mutual trust when the state court on remand -- perhaps out of misplaced sense of duty -- confines its state constitution to the boundaries marked by this Court for the Federal Constitution. In Montana v. Jackson, 460 U.S. 1030 (1983), for example, this Court vacated and remanded "for further consideration in light of South Dakota v. Neville, 459 U.S. 553 (1983)." In so doing, this Court presumed that the judgment of the Montana Supreme Court did not rest on Montana’s Constitution. Justice Sheehy, joined by the author of the state court’s original opinion, rather bitterly disagreed:

In our original opinion in this case, we had examined the rights guaranteed our citizens under state constitutional principles, in the light of federal constitutional decisions. Now the United States Supreme Court has interjected itself, commanding us in effect to withdraw the constitutional rights which we felt we should extend to our state citizens back to the limits pr[e]scribed by the federal decisions. Effectively, the United States Supreme Court has intruded upon the rights of the judiciary of this sovereign state.

Instead of knuckling under to this unjustified expansion of federal judicial power into the perimeters of our state power, we should show our judicial displeasure by insisting that, in Montana, this sovereign state can interpret its constitution to guarantee rights to its citizens greater than those guaranteed by the federal constitution.

If a majority of this Court had the will to press the issue, we could put the question to the United States Supreme Court four-square, that this State judiciary has the right to interpret its constitution in the light of federal decisions, and to go beyond the federal decisions in granting and preserving rights to its citizens under its state constitution.

State v. Jackson, 206 Mont. 338, 349-351, 672 P.2d 255, 260-261 (1983) (Sheehy, J., dissenting). See id. at 357-358, 672 P.2d at 264-265 (Shea, J., dissenting).

The Court’s two-sentence analysis notwithstanding, one cannot be confident that we have not trenched on state prerogatives in this very case. Here, the Delaware Supreme Court applied a rule reversing convictions when the defendant had been totally denied the right to cross-examine a witness for bias. The rule was expressly found to be

consistent with Davis v. Alaska, 415 U.S. 308 (1974) and with our ruling in Weber [v. State, 457 A.2d 674 (1983),] for determining whether a violation of the confrontation clause is harmless.

486 A.2d 1, 7 (1984) (emphasis added and citations omitted). Weber itself emphasized that

[b]oth the United States and Delaware Constitutions guarantee the right of a defendant to confront the witnesses against him. U.S.Const. amend. VI; Del. Const. art. I, § 7.

Weber v. State, 457 A.2d at 682 (footnote omitted). At no point did the Delaware Supreme Court imply that it reversed the defendant’s conviction only because that result was compelled by its understanding of federal constitutional law; rather, the conclusion that its rule was "consistent with" a case of this Court construing the federal Confrontation Clause suggests that it was interested merely in respecting the bounds of federal law, as opposed to carrying out its command. The Court rewards the Delaware Supreme Court’s circumspection by unceremoniously reversing its judgment.


I agree with JUSTICE MARSHALL that

the Delaware Supreme Court remains free on remand to decide that . . . its harmless error analysis was the product of state, rather than federal, law.

Ante at 689. Because the Court’s approach does nothing to minimize, and indeed multiplies, future occasions on which state courts may be called upon to clarify whether their judgments were in fact based on state law, it is appropriate to amplify the opinion I expressed in Massachusetts v. Upton, 466 U.S. 727, 736 (1984) (concurring in judgment), that the proper "sequence of analysis when an arguable violation of the State Constitution is disclosed by the record" is for the state court to consider the state constitutional claim in advance of any federal constitutional claim. In that case, I described the Oregon Supreme Court’s practice of considering state constitutional claims before reaching issues of federal constitutional law:

"The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law." Sterling v. Cupp, 290 Ore. 611, 614, 625 P.2d 123, 126 (1981).

Massachusetts v. Upton, 466 U.S. at 736.{10} Since that time, at least four other state courts have expressly endorsed the practice of considering state constitutional claims first.{11} In response to Michigan v. Long, 463 U.S. 1032 (1983), for example, the New Hampshire Supreme Court concluded:

When a defendant, as in this case, has invoked the protections of the New Hampshire Constitution, we will first address these claims.

. . . We live under a unique concept of federalism and divided sovereignty between the nation and fifty States. The New Hampshire Constitution is the fundamental charter of our State. The sovereign people gave limited powers to the State government, and the Bill of Rights in part I of the New Hampshire Constitution protects the people from governmental excesses and potential abuses. When State constitutional issues have been raised, this court has a responsibility to make an independent determination of the protections afforded in the New Hampshire Constitution. If we ignore this duty, we fail to live up to our oath to defend our constitution and we help to destroy the federalism that must be so carefully safeguarded by our people. The Supreme Court of the State of Oregon recently recognized this responsibility and stated:

The point is . . . that a state’s constitutional guarantees . . . were meant to be and remain genuine guarantees against misuse of the state’s governmental powers, truly independent of the rising and falling tides of federal case law both in method and specifics. State courts cannot abdicate their responsibility for these independent guarantees, at least not unless the people of the State themselves choose to abandon them and entrust their rights entirely to federal law.

State v. Kennedy, 295 Or. 260, 271, 666 P.2d 1316, 1323 (1983).

State v. Ball, 124 N. H. 226, 231, 471 A.2d 347, 350 (1983). Since 1983, in over a dozen cases,{12} the New Hampshire Supreme Court has thereby averted unnecessary disquisitions on the meaning of the Federal Constitution.

The emerging preference for state constitutional bases of decision in lieu of federal ones is, in my view, the analytical approach best suited to facilitating the independent role of state constitutions and state courts in our federal system. There is much wisdom in THE CHIEF JUSTICE’s admonition that

State courts . . . are responsible first for resolving issues arising under their constitutions and statutes and then for passing on matters concerning federal law.

Year-End Report on the Judiciary 18 (1981).

It must be remembered that every State but Rhode Island had a written constitution by the close of the Revolutionary War in 1783.

[F]or the first century of this Nation’s history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected the liberties of the people of the several States from abuse by state authorities.

Massachusetts v. Upton, 466 U.S. at 738-739 (STEVENS, J., concurring in judgment). The independent significance of state constitutions clearly informed this Court’s conclusion, in Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243, 247-248 (1833), that the Bill of Rights applied only to the Federal Government:

The question thus presented is, we think, of great importance, but not of much difficulty.

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated.

. . . In their several constitutions, they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest.

While the holding of the Barron case has since been superseded by ratification of the Fourteenth Amendment and selective incorporation of the Bill of Rights, the concomitant atrophy of state constitutional theory was both unnecessary and unfortunate.{13} State constitutions preceded the Federal Constitution, and were obviously intended to have independent significance.{14} The frequent amendments to state constitutions likewise presuppose their continued importance. Thus, whether the national minimum set by the Federal Constitution is high or low, state constitutions have their own unique origins, history, language, and structure -- all of which warrant independent attention and elucidation. State courts remain primarily responsible for reviewing the conduct of their own executive branches, for safeguarding the rights of their citizenry, and for nurturing the jurisprudence of state constitutional rights which it is their exclusive province to expound.{15}

Because I would not presume that the Delaware Supreme Court failed to discharge this responsibility, I would dismiss the writ.


Related Resources

None available for this document.

Download Options

Title: Delaware v. Van Arsdall, 475 U.S. 673 (1986)

Select an option:

*Note: A download may not start for up to 60 seconds.

Email Options

Title: Delaware v. Van Arsdall, 475 U.S. 673 (1986)

Select an option:

Email addres:

*Note: It may take up to 60 seconds for for the email to be generated.

Chicago: John Paul Stevens, "Stevens, J., Dissenting," Delaware v. Van Arsdall, 475 U.S. 673 (1986) in 475 U.S. 673 475 U.S. 690–475 U.S. 708. Original Sources, accessed September 23, 2023,

MLA: Stevens, John Paul. "Stevens, J., Dissenting." Delaware v. Van Arsdall, 475 U.S. 673 (1986), in 475 U.S. 673, pp. 475 U.S. 690–475 U.S. 708. Original Sources. 23 Sep. 2023.

Harvard: Stevens, JP, 'Stevens, J., Dissenting' in Delaware v. Van Arsdall, 475 U.S. 673 (1986). cited in 1986, 475 U.S. 673, pp.475 U.S. 690–475 U.S. 708. Original Sources, retrieved 23 September 2023, from