ArtIII.S2.C1.10.6 Last Resort Rule

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Under the Last Resort Rule, a court should “not pass upon a constitutional question . . . if there is also present some other ground upon which the case may be disposed.” 1 Accordingly, if a court can resolve a case on both constitutional and non-constitutional grounds, the court should do so on non-constitutional grounds.2 By doing so, the court avoids creating constitutional precedent unnecessarily, while giving the political process time to resolve contentious constitutional issues. Because the Last Resort Rule informs the order in which the Court should address constitutional and non-constitutional questions in a case, it is sometimes described as a “rule of judicial procedure.” 3

An example of the Court’s use of the Last Resort Rule is its decision in Bond v. United States.4 In Bond, federal prosecutors charged Carol Bond with violating Section 229 of the Chemical Weapons Convention Implementation Act (CWCIA) when she caused “a minor thumb burn readily treated by rinsing with water” to her husband’s lover by applying toxic chemicals to the paramour’s car, mailbox, and door knob.5 Bond argued that Section 229 (1) “exceeded Congress’s enumerated powers and invaded powers reserved to the States by the Tenth Amendment6 and (2) did not apply to her because “her conduct, though reprehensible, was not at all ‘warlike.’” 7 Faced with resolving Bond on either statutory or constitutional grounds, the Court, relying on the Last Resort Rule, considered first whether it could resolve the case based on Bond’s argument that Section 229 did not apply to her actions.8 After analyzing the CWCIA, the Court concluded that Congress did not intend for Section 229 to apply to Bond’s circumstance.9

Based on the Last Resort Rule, the Supreme Court has remanded cases involving constitutional questions to lower courts to see if the case can be resolved on statutory grounds. For example, in Escambia County v. McMillan, the Supreme Court remanded a case affirmed by the appellate court on constitutional grounds because the district court also found a statutory violation.10 The Supreme Court instructed the appellate court to determine if it could affirm the district court’s decision based on the statutory rather than the constitutional ruling.11 In other cases, the Court has avoided ruling on a constitutional question by deciding a case based on statutory reasons not considered by the lower court.12 For instance, the Court resolved Siler v. Louisville & Nashville Railroad by ruling that the Railroad Commission violated a Kentucky statute—an issue the Kentucky state court had not considered.13 By reaching this conclusion, the Court avoided addressing Siler's constitutional questions.14

Siler concerned questions of federal and state law. While the Supreme Court interpreted the Kentucky statute in Siler, the Court often remands cases involving constitutional and state law issues to state courts so they can first resolve state law questions. Consistent with this approach, the Supreme Court has dismissed state court appeals based on constitutional questions if state law can sustain the judgment.15 Besides avoiding constitutional questions, remanding state law questions to state courts has other advantages: First, the Court avoids using its resources to decide questions where its decisions would be advisory.16 Second, the Court acknowledges state expertise and autonomy to interpret state laws.17 Declining to rule on a constitutional question when a ruling on either of two state laws could resolve the case,18 the Court observed:

The doctrine that the Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it” . . . is a well-settled doctrine of this Court which, because it carries a special weight in maintaining proper harmony in federal-state relations, must not yield to the claim of the relatively minor inconvenience of postponement of decision.19

Third, the Court avoids having to rule on unfamiliar state law. In Spector Motor Service v. McLaughlin, the Court ruled that federal litigation should be held pending state court resolution of “intertwined” local law.20 Justice Felix Frankfurter stated:

[W]e have insisted that federal courts do not decide questions of constitutionality on the basis of preliminary guesses regarding local law. Avoidance of such guesswork, by holding the litigation in the federal courts until definite determinations on local law are made by the state courts, merely heeds this time-honored canon of constitutional adjudication.21

The Court has used the Last Resort Rule to avoid politically contentious issues. For example, in Railroad Commission of Texas v. Pullman Co., the Court directed the parties to litigate their state law questions in state court and ordered the lower federal court to hold the federal case in abeyance pending the state litigation. By doing this, the Court avoided ruling on the politically charged issue of whether the Railroad Commission of Texas violated the Constitution by requiring white Pullman conductors, and not black Pullman porters, to operate sleeping cars. Reasoning that “[s]uch constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy,” Justice Frankfurter stated: “[The equal protection issue] touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” 22

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). See also Eustis v. Bolles, 150 U.S. 361, 366 (1893) ( “[W]here the record discloses that if a question has been raised and decided adversely to a party claiming the benefit of a provision of the constitution or laws of the United States, another question, not federal has been also raised and decided against such party, and the decision of the latter question is sufficient, notwithstanding the federal question, to sustain the judgment, this court will not review the judgment.” ). back
Berea Coll. v. Kentucky, 211 U.S. 45, 53 (1908) ( “[W]hen a state court decides a case upon two grounds, one Federal and the other non-Federal, this court will not disturb the judgment if the non-Federal ground, fairly construed, sustains the decision.” ); Allen v. Arguimbau, 198 U.S. 149, 154–55 (1905) ( “[I]f the judgment rested on two grounds, one involving a Federal question and the other not, or if it does not appear on which of two grounds the judgment was based, and the ground independent of a Federal question is sufficient in itself to sustain it, this court will not take jurisdiction.” ); Murdock v. Memphis, 87 U.S. 590, 636 (1874) ( “If [the judgment] was erroneously decided against plaintiff in error, then this court must further inquire, whether there is any other matter or issue adjudged by the State court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the Federal question. If this is found to be the case, the judgment must be affirmed without inquiring into the soundness of the decision on such other matter or issue.” ). back
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 251 (2012). back
Bond v. United States, 572 U.S. 844 (2014). back
Id. at 852. back
Id. at 853. Discussing Bond’s constitutional claim, the Court noted that, under the Constitution, the states retained “broad authority to enact legislation for the public good-what we have often called a ‘police power.’” Id. at 854 (citing United States v. Lopez, 514 U.S. 549, 567 (1995)). As a consequence, the Court explained, “[a] criminal act committed wholly within a State ‘cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiciton of the United States.’” Id. (quoting United States v. Fox, 95 U.S. 670, 672 (1878)). back
Id. at 853. back
Id. at 855. back
Id. at 866 ( “[I]f section 229 reached Bond’s conduct, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Absent a clear statement of that purpose, we will not presume Congress to have authoried such a stark intrusion into traditional state authority.” ). back
Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984). back
Id. back
Siler v. Louisville & Nashville R.R., 213 U.S. 175, 191 (1909) ( “This court . . . can, if it deem it proper, decide the local questions only, and omit to decide the federal questions.” ). See also Jean v. Nelson, 472 U.S. 846 (1985); United States v. Locke, 471 U.S. 84 (1985); Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). But see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (holding Eleventh Amendment bars federal courts from hearing state law cases when the state is the defendant). back
Siler, 213 U.S. at 194 back
Id. at 193. back
Berea Coll. v. Kentucky, 211 U.S. 45, 53 (1908) ( “[W]hen a state court decides a case upon two grounds, one Federal and the other non-Federal, this court will not disturb the judgment if the non-Federal ground, fairly construed, sustains the decision.” (citations omitted)). See also Allen v. Arguimbau, 198 U. S. 149, 154–55 (1905). back
Michigan v. Long, 463 U.S. 1032, 1040–41 (1983) ( “Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court’s refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions.” ). See also Erie R.R. v. Tompkins, 304 U.S. 64, 79 (1938) ( “[Federal] [s]upervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the state, and, to that extent, a denial of its independence.” ). back
Giles v. Teasley, 193 U.S. 146, 160 (1904) ( “[I]f the decision of a state court rests on an independent ground—one which does not necessarily include a determination of the Federal right claimed—or upon a ground broad enough to sustain it without deciding the Federal question raised, this court has no jurisdiction to review the judgment of the state court.” (citations omitted)). See also Wade v. Lawder, 165 U.S. 624, 628 (1897) ( “The decree rested on grounds broad enough to sustain it without reference to any federal question.” ); Dower v. Richards, 151 U.S. 658, 666 (1894) ( “[A] writ of error can be sustained only when the decision of the state court is against a right claimed under the constitution and laws of the United States. And if the decision of the state court rests on an independent ground of law, not involving any federal question, this court has no jurisdiction.” (citations omitted)). back
Clay v. Sun Ins. Office Ltd., 363 U.S. 207 (1960). back
Id. at 211–12 (citations omitted). back
Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944). back
Id. See also Burford v. Sun Oil Co., 319 U.S. 315, 333 (1943); City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 173 (1942). back
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). See also Harris Cnty. Comm’r v. Moore, 420 U.S. 77, 88–89 (1975) (holding federal court to abstain until Texas court resolves state constitutional questions); Reetz v. Bozanich, 397 U.S. 82, 87 (1970) ( “[T]he federal court should have stayed its hand while the parties repaired to the state courts for a resolution of their state constitutional questions.” ). back