Merrill Lynch v. Manning is a victory for state courts. It’s just complicated to explain how.

Per a general federal court jurisdiction statute, Section 1331, federal courts have jurisdiction over all civil lawsuits “arising under” federal law. Section 27 of the Securities Exchange Act provides federal court jurisdiction for all suits “brought to enforce” the Exchange Act.  

In Merrill Lynch v. Manning the Supreme Court held that “arising under” and “brought to enforce” mean the same thing. If a lawsuit, involving violating securities law, such as the one in this case, only includes state law claims that don’t necessarily raise federal issues that lawsuit doesn’t “arise under” federal law. Per the Court’s opinion it also therefore isn’t “brought to enforce” the Exchange Act and must be heard in state court.

In Franchise Tax Board of California v. Hyatt the Supreme Court held 6-2 that the Constitution’s Full Faith and Credit Clause requires state courts to apply a damages cap, which applies to the state, to  foreign states and local governments sued in its court.

The State and Local Legal Center filed an amicus brief in this case asking the Court to reach this result. State and local governments are frequently sued out-of-state and will benefit if other states’ immunities apply to them.  

In the words of the Colorado Supreme Court, two fundamental tenets of our judicial system are at odds with each other in Pena-Rodriguez v. Colorado:  protecting the secrecy of jury deliberations and ensuring a defendant’s constitutional right to an impartial jury.

Most states, including Colorado, and the federal government have a “no-impeachment” rule which prevents jurors from testifying after a verdict about what happened during deliberations with limited exceptions that do not include that a juror expressed racial bias.

Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states.

The Court has already decided two big cases and has four more left to go. Only one of the six big cases (involving the Affordable Care Act birth control mandate) will have no direct impact on the states.

CSG Midwest
More than a half-century ago, some unpopular political maneuvering in Kansas caused voters there to create one of the nation’s more unique structures for appointing judges to a state supreme court. That change purposefully reined in the nomination powers of state elected officials, namely the governor.
Over the past few years, the legislative and executive branches have been exploring ideas to get some of that authority back.
“Kansas is the only state in the country where the selection of supreme court justices is controlled by a handful of lawyers,” Gov. Sam Brownback said in his annual State of the State address this year.
He has been among the state’s political leaders pushing for a constitutional change, one that would either alter Kansas’ merit-based selection process or get rid of it altogether. Like many states with merit-based appointment systems, Kansas uses a nominating commission to create a pool of candidates to fill open positions to the Supreme Court.

While the national spotlight is focused on the U.S. Supreme Court vacancy and questions surrounding the appointment process, states vary in their methods of judicial selection. In 15 states, unexpired supreme court terms are filled via gubernatorial appointments with no other consent needed. Thirty-four states call for gubernatorial appointments with consent of another body, be it legislature or nominating commission. One state, South Carolina, fills unexpired terms through legislative appointment.

Unlike the U.S. Supreme Court, many states allow justices to be elected by the people. Twenty-two states hold statewide elections for supreme court justices. Of those 22 states, 13 hold non-partisan elections. Twenty-six states use some form of gubernatorial appointment process to fill full terms and two use legislative appointment.

So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.

The short answer is it depends and in all instances isn’t entirely clear.

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4 the Court has two choices:  wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.

Justice Scalia’s death this weekend comes at an uncertain time in our Nation’s history as we are quickly approaching a Presidential election. Unsurprisingly, while some of the news coverage has focused on the substance of his nearly 30 year career as a Supreme Court Justice, much of it has focused on the challenges of replacing him.

The public knew Justice Scalia as a conservative, particularly on social issues like abortion, the death penalty, and same-sex marriage. Attorneys will remember Justice Scalia as an “originalist” who believed that the Constitution should be interpreted as the founders intended and a “textualist” who interpreted laws by looking only at the words on the page. Court watchers admired Justice Scalia’s beautifully written, clear, and often colorful, opinions.  

But what was Justice Scalia’s impact on state and local government?

During a recent CSG eCademy webcast, two judicial experts described how the U.S. state and federal court systems work and how court decisions impact state governments. “Federalism and the U.S. Judicial Branch” was the third and final presentation in a series of webcasts about federalism’s impact across the branches.

Recently, the Supreme Court’s already interesting docket got even more high profile. First, it agreed to decide whether the Affordable Care Act (ACA) birth control mandate violates religious nonprofits rights. Then, it agreed to decide whether a Texas abortion law is unconstitutional.

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