Reconstructing Murdock v. Memphis

In the 1789 Judiciary Act, the first Congress limited the Supreme Court’s appellate jurisdiction over state court judgments to questions of federal law that appeared on the face of the record. During Reconstruction, Congress amended the Act and dropped the earlier limitation, thus suggesting that, in cases within its appellate jurisdiction, the Court could review errors of state law as well as federal law. But in the landmark case of Murdock v. Memphis (1875), the Court rejected such a reading—a ruling that continues to govern the Court today. Some scholars charge, however, that Murdock failed to give meaning to Congress’s changes and urge its reconsideration.

This Article argues that as a historical matter, those critics are likely wrong. Murdock gave substantial meaning to the Reconstruction changes to the Court’s jurisdiction in ways that scholars have overlooked or minimized. First, Murdock read the changes as allowing the Court to look beyond what once constituted the formal “record” on appeal in order to identify more readily state court denials of federal rights. Second, in an even more significant departure from prior practice, Murdock read the changes as requiring it to deny jurisdictional status to “adequate state grounds”—state law grounds sufficient to uphold the judgment, independent of the federal grounds. Today, the Court views such grounds as a jurisdictional bar to reviewing errors of federal law, although it scrutinizes such grounds lest state courts subvert the Court’s jurisdiction by doubtful rulings on state law. But Murdock achieved a somewhat similar result by de-jurisdictionalizing adequate state grounds, thus allowing the Court to review errors of federal law, adequate state grounds notwithstanding.

By focusing on Murdock’s conclusion that the Court could not generally review errors of state law, critics have underappreciated the substantial role that Murdock gave to Reconstruction reforms to secure the supremacy of federal law. Moreover, it is questionable whether the Reconstruction Congress wanted the Court to review questions of state law generally, as opposed to having it police the adequacy of state law grounds (which, at the time, were largely unreviewable). Although Murdock’s particular solution to the problem of adequate state grounds proved short-lived, the decision was an important step in the Supreme Court’s expanded review of federal rights denials, and, overall, was responsive to the Reconstruction Congress’s likely concerns.


The extent of Congress’s power to curtail the jurisdiction of the federal courts has produced a long-running debate. Article III traditionalists defend broad congressional power to withhold jurisdiction from the federal courts altogether, while critics argue that some or all Article III business—most notably cases arising under federal law—must be heard in an Article III tribunal, at least on appeal. But traditionalists and their “aggregate vesting” critics are on common ground in supposing that the Constitution is indifferent to whether Article III cases within the Supreme Court’s appellate jurisdiction are heard initially in a state court or an inferior court that Congress chooses to create. Indeed, this is the settled understanding of Article III. This Article suggests that the First Congress likely did not share the common ground on which these competing visions of congressional power rest. Instead, the debates over the 1789 Judiciary Act reveal a widely-voiced understanding that state courts were constitutionally disabled from hearing certain Article III matters in the first instance—such as federal criminal prosecutions and various admiralty matters—and that Congress could not empower state courts to hear them. Many in Congress therefore also supposed that lower federal courts were mandated if such cases were to be heard at all. Although a vocal minority countered with the now-dominant view of state court power and the constitutional non-necessity of lower federal courts, they did so as part of a losing effort to eliminate the proposed federal district courts. The debates pose problems for traditionalists as well as their critics, but they are ultimately more problematic for the critics. Rather than providing support for a theory of mandatory aggregate vesting of federal question cases or other Article III business, this underappreciated constitutional dimension of the debate is better viewed as supporting a limited notion of constitutionally-driven jurisdictional exclusivity.