Cox Broadcasting Corp. v. Cohn

Mr. Justice Rehnquist,

dissenting.

Because I am of the opinion that the decision which is the subject of this appeal is not a “final” judgment or decree, as that term is used in 28 U. S. C. § 1257 ,1 would dismiss this appeal for want of jurisdiction.

Radio Station WOW, Inc. v. Johnson, 326 U. S. 120 (1945), established that in a “very few” circumstances review of state-court decisions could be had in this Court even though something “further remain [ed] to be determined by a State court.” Id., at 124 . Over the years, however, and despite vigorous protest by Mr. Justice Harlan, 1 this Court has steadily discovered new exceptions to the finality requirement, such that they can hardly any longer be described as “very few.” Whatever may be the unexpressed reasons for this process of expansion, see, e. g., Hudson Distributors v. Eli Lilly, 377 U. S. 386, 401 (1964) (Harlan, J., dissenting), it has frequently been the subject of no more formal an express explanation than cursory citations to preceding cases in *502 the line. Especially is this true of cases in which the Court, as it does today, relies on Construction Laborers v. Curry, 371 U. S. 542 (1963). 2 Although the Court’s opinion today does accord detailed consideration to this problem, I do not believe that the reasons it expresses can support its result.

I

The Court has taken what it terms a “pragmatic” approach to the finality problem presented in this case. In so doing, it has relied heavily on Gillespie v. United States Steel Corp., 379 U. S. 148 (1964). As the Court acknowledges, ante, at 478 n. 7, Gillespie involved 28 U. S. C. § 1291 , which restricts the appellate jurisdiction of the federal courts of appeals to “final decisions of the district courts.” Although acknowledging this distinction, the Court accords it no importance and adopts Gillespie’s approach without any consideration of whether the finality requirement for this Court’s jurisdiction over a “judgment or decree” of a state court is grounded on more serious concerns than is the limitation of court of appeals jurisdiction to final “decisions” of the district courts. 3 I believe that the underlying concerns are differ *503 ent, and that the difference counsels a more restrictive approach when § 1257 finality is at issue.

According to Gillespie , the finality requirement is imposed as a matter of minimizing “the inconvenience and costs of piecemeal review.” This proposition is undoubtedly sound so long as one is considering the administration of the federal court system. Were judicial efficiency the only interest at stake there would be less inclination to challenge the Court’s resolution in this case, although, as discussed below, I have serious reservations that the standards the Court has formulated are effective for achieving even this single goal. The case before us, however, is an appeal from a state court, and this fact introduces additional interests which must be accommodated in fashioning any exception to the literal application of the finality requirement. I consider § 1257 finality to be but one of a number of congressional provisions reflecting concern that uncontrolled federal judicial interference with state administrative and judicial functions would have untoward consequences for our federal system. 4 This is by no means a novel view of the § 1257 finality requirement. In Radio Station WOW, Inc. v. Johnson, 326 U. S., at 124 , Mr. Justice Frankfurter’s *504 opinion for the Court explained the finality requirement as follows:

“This requirement has the support of considerations generally applicable to good judicial administration. It avoids the mischief of economic waste and of delayed justice. Only in very few situations, where intermediate rulings may carry serious public consequences, has there been a departure from this requirement of finality for federal appellate jurisdiction. This prerequisite to review derives added force when the jurisdiction of this Court is invoked to upset the decision of a State court. Here we are in the realm of potential conflict between the courts of two different governments. And so, ever since 1789, Congress has granted this Court the power to intervene in State litigation only after 'the highest court of a State in which a decision in the suit could be had’ has rendered a 'final judgment or decree.’ §237 of the Judicial Code, 28 U. S. C. §344 (a). This requirement is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system.” (Emphasis added.)

In Republic Gas Co. v. Oklahoma, 334 U. S. 62, 67 (1948), Mr. Justice Frankfurter, speaking for the Court, again expressed this view:

“This prerequisite for the exercise of the appellate powers of this Court is especially pertinent when a constitutional barrier is asserted against a State court’s decision on matters peculiarly of local concern. Close observance of this limitation upon the Court is not regard for a strangling technicality. History bears ample testimony that it is an important factor in securing harmonious State-federal relations.”

*505 That comity and federalism are significant elements of § 1257 finality has been recognized by other members of the Court as well, perhaps most notably by Mr. Justice Harlan. See, e. g., Hudson Distributors v. Eli Lilly, 377 U. S., at 397-398 (dissenting); Mercantile National Bank v. Langdeau, 371 U. S. 555, 572 (1963) (dissenting). In the latter dissent, he argued that one basis of the finality rule was that it foreclosed “this Court from passing on constitutional issues that may be dissipated by the final outcome of a case, thus helping to keep to a minimum undesirable federal-state conflicts.” One need cast no doubt on the Court’s decision in such cases as Langdeau to recognize that Mr. Justice Harlan was focusing on a consideration which should be of significance in the Court’s disposition of this case.

“Harmonious state-federal relations” are no less important today than when Mr. Justice Frankfurter penned Radio Station WOW and Republic Gas Co. Indeed, we have in recent years emphasized and re-emphasized the importance of comity and federalism in dealing with a related problem, that of district court interference with ongoing state judicial proceedings. See Younger v. Harris, 401 U. S. 37 (1971); Samuels v. Mackell, 401 U. S. 66 (1971). Because these concerns are important, and because they provide “added force” to § 1257’s finality requirement, I believe that the Court has erred by simply importing the approach of cases in which the only concern is efficient judicial administration.

II

But quite apart from the considerations of federalism which counsel against an expansive reading of our jurisdiction under § 1257, the Court’s holding today enunciates a virtually formless exception to the finality requirement, one which differs in kind from those previously carved out. By contrast, Construction Laborers v. Curry, supra, *506 and Mercantile National Bank v. Langdeau, supra, are based on the understandable principle that where the proper forum for trying the issue joined in the state courts depends on the resolution of the federal question raised on appeal, sound judicial administration requires that such a question be decided by this Court, if it is to be decided at all, sooner rather than later in the course of the litigation. Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971), and Mills v. Alabama, 384 U. S. 214 (1966), rest on the premise that where as a practical matter the state litigation has been concluded by the decision of the State’s highest court, the fact that in terms of state procedure the ruling is interlocutory should not bar a determination by this Court of the merits of the federal question.

Still other exceptions, as noted in the Court’s opinion, have been made where the federal question decided by the highest court of the State is bound to survive and be presented for decision here regardless of the outcome of future state-court proceedings, Radio Station WOW, supra; Brady v. Maryland, 373 U. S. 83 (1963), and for the situation in which later review of the federal issue cannot be had, whatever the ultimate outcome of the subsequent proceedings directed by the highest court of the State, California v. Stewart, 384 U. S. 436 (1966) (decided with Miranda v. Arizona); North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U. S. 156 (1973). While the totality of these exceptions certainly indicates that the Court has been willing to impart to the language “final judgment or decree” a great deal of flexibility, each of them is arguably consistent with the intent of Congress in enacting § 1257, if not with the language it used, and each of them is relatively workable in practice.

To those established exceptions is now added one so *507 formless that it cannot be paraphrased, but instead must be quoted:

“Given these factors — that the litigation could be terminated by our decision on the merits and that a failure to decide the question now will leave the press in Georgia operating in the shadow of the civil and criminal sanctions of a rule of law and a statute the constitutionality of which is in serious doubt — we find that reaching the merits is consistent with the pragmatic approach that we have followed in the past in determining finality.” Ante, at 486.

There are a number of difficulties with this test. One of them is the Court’s willingness to look to the merits. It is not clear from the Court’s opinion, however, exactly how great a look at the merits we are to take. On the one hand, the Court emphasizes that if we reverse the Supreme Court of Georgia the litigation will end, ante, at 485-486, and it refers to cases in which the federal issue has been decided “arguably wrongly.” Ante, at 486 n. 13. On the other hand, it claims to look to the merits “only to the extent of determining that the issue is substantial.” Ibid. If the latter is all the Court means, then the inquiry is no more extensive than is involved when we determine whether a case is appropriate for plenary consideration; but if no more is meant, our decision is just as likely to be a costly intermediate step in the litigation as it is to be the concluding event. If, on the other hand, the Court really intends its doctrine to reach only so far as cases in which our decision in all probability will terminate the litigation, then the Court is reversing the traditional sequence of judicial decisionmaking. Heretofore, it has generally been thought that a court first assumed jurisdiction of a case, and then went on to decide the merits of the questions it presented. But henceforth in deter *508 mining our own jurisdiction we may be obliged to determine whether or not we agree with the merits of the decision of the highest court of a State.

Yet another difficulty with the Court’s formulation is the problem of transposing to any other case the requirement that “failure to decide the question now will leave the press in Georgia operating in the shadow of the civil and criminal sanctions of a rule of law and a statute the constitutionality of which is in serious doubt.” Ante, at 486. Assuming that we are to make this determination of “serious doubt” at the time we note probable jurisdiction of such an appeal, is it enough that the highest court of the State has ruled against any federal constitutional claim? If that is the case, then because § 1257 by other language imposes that requirement, we will have completely read out of the statute the limitation of our jurisdiction to a “final judgment or decree.” Perhaps the Court’s new standard for finality is limited to cases in which a First Amendment freedom is at issue. The language used by Congress, however, certainly provides no basis for preferring the First Amendment, as incorporated by the Fourteenth Amendment, to the various other Amendments which are likewise “incorporated,” or indeed for preferring any of the “incorporated” Amendments over the due process and equal protection provisions which are embodied literally in the Fourteenth Amendment.

Another problem is that in applying the second prong of its test, the Court has not engaged in any independent inquiry as to the consequences of permitting the decision of the Supreme Court of Georgia to remain undisturbed pending final state-court resolution of the case. This suggests that in order to invoke the benefit of today’s rule, the “shadow” in which an appellant must stand need be neither deep nor wide. In this case nothing more is *509 at issue than the right to report the name of the victim of a rape. No hindrance of any sort has been imposed on reporting the fact of a rape or the circumstances surrounding it. Yet the Court unquestioningly places this issue on a par with the core First Amendment interest involved in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), and Mills v. Alabama, supra, that of protecting the press in its role of providing uninhibited political discourse. 5

But the greatest difficulty with the test enunciated today is that it totally abandons the principle that constitutional issues are too important to be decided save when absolutely necessary, and are to be avoided if there are grounds for decision of lesser dimension. 6 The long line of cases which established this rule makes clear that it is a principle primarily designed, not to benefit the lower courts, or state-federal relations, but rather to safeguard this Court’s own process of constitutional adjudication.

“Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised *510 by a party whose interests entitle him to raise it.” Blair v. United States, 250 U. S. 273, 279 (1919). “The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ Liverpool, N. Y. & P. S. S. Co. v. Emigration Commissioners, 113 U. S. 33, 39 ; Abrams v. Van Schaick, 293 U. S. 188 ; Wilshire Oil Co. v. United States, 295 U. S. 100 . It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States, 196 U. S. 283, 295 .” Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 346-347 (1936) (Brandéis, J., concurring).

In this case there has yet to be an adjudication of liability against appellants, and unlike the appellant in Mills v. Alabama , they do not concede that they have no non-federal defenses. Nonetheless, the Court rules on their constitutional defense. Far from eschewing a constitutional holding in advance of the necessity for one, the Court construes § 1257 so that it may virtually rush out and meet the prospective constitutional litigant as he approaches our doors.

Ill

This Court is obliged to make preliminary determinations of its jurisdiction at the time it votes to note probable jurisdiction. At that stage of the proceedings, prior to briefing on the merits or oral argument, such determinations must of necessity be based on relatively cursory acquaintance with the record of the proceedings below. The need for an understandable and workable application of a jurisdictional provision such as § 1257 is therefore far greater than for a similar interpretation of statutes dealing with substantive law. 7 We, of course, re *511 tain the authority to dismiss a case for want of a final judgment after having studied briefs on the merits and having heard oral argument, but I can recall not a single instance of such a disposition during the last three Terms of the Court. While in theory this may be explained by saying that during these Terms we have never accorded plenary consideration to a § 1257 case which was not a “final judgment or decree,” I would guess it just as accurate to say that after the Court has studied briefs and heard oral argument, it has an understandable tendency to proceed to a decision on the merits in preference to dismissing for want of jurisdiction. It is thus especially disturbing that the rule of this case, unlike the more workable and straightforward exceptions which the Court has previously formulated, will seriously compound the already difficult task of accurately determining, at a preliminary stage, whether an appeal from a state-court judgment is a “final judgment or decree.”

A further aspect of the difficulties which the Court is generating is illustrated by a petition for certiorari recently filed in this Court, Time, Inc. v. Firestone, No. 74-944. The case was twice before the Florida Supreme Court. That court’s first decision was rendered in December 1972; it rejected Time’s First Amendment defense to a libel action, and remanded for further proceedings on state-law issues. The second decision was rendered in 1974, and dealt with the state-law issues litigated on remand. Before this Court, Time seeks review of the First Amendment defense rejected by the Florida Supreme Court in December 1972. Under the Court’s decision today, one could conclude that the 1972 judgment was itself a final decision from which review might *512 have been had. If it was, then petitioner Time is confronted by 28 U. S. C. §2101 (c), which restricts this Court's jurisdiction over state civil cases to those in which review is sought within 90 days of the entry of a reviewable judgment.

I in no way suggest either my own or the Court’s views on our jurisdiction over Time, Inc. v. Firestone. This example is simply illustrative of the difficulties which today’s decision poses not only for this Court, but also for a prudent counsel who is faced with an adverse interlocutory ruling by a State’s highest court on a federal issue asserted as a dispositive bar to further litigation. I suppose that such counsel would be unwilling to presume that this Court would flout both the meaning of words and the command of Congress by employing loose standards of finality to obtain jurisdiction, but strict ones to prevent its loss. He thus would be compelled to judge his situation in light of today’s formless, unworkable exception to the finality requirement. I would expect him frequently to choose to seek immediate review in this Court, solely as a matter of assuring that his federal contentions are not lost for want of timely filing. The inevitable result will be totally unnecessary additions to our docket and serious interruptions and delays of the state adjudicatory process.

Although unable to persuade my Brethren that we do not have in this case a final judgment or decree of the Supreme Court of Georgia, I nonetheless take heart from the fact that we are concerned here with an area in which “stare decisis has historically been accorded considerably less than its usual weight.” Gonzalez v. Employees Credit Union, 419 U. S. 90, 95 (1974). I would dismiss for want of jurisdiction.

See Construction Laborers v. Curry, 371 U. S. 542, 553 (1963); Mercantile National Bank v. Langdeau, 371 U. S. 555, 572 (1963); Hudson Distributors v. Eli Lilly, 377 U. S. 386, 395 (1964); Organization for a Better Austin v. Keefe, 402 U. S. 415, 420 (1971).

See, e. g., American Radio Assn. v. Mobile S. S. Assn., 419 U. S. 215 , 217 n. 1 (1974); Hudson Distributors v. Eli Lilly, supra, at 389 n. 4.

The textual distinction between §§ 1291 and 1257, the former referring to "final decisions,” while the latter refers to “final judgments or decrees,” first appeared in the Evarts Act, Act of Mar. 3, 1891, 26 Stat. 826 , which created the courts of appeals. Section 6 of that Act provided that courts of appeals should exercise appellate jurisdiction over “final decision” of the federal trial courts. The House version of the Act had referred to “final judgment or decree,” 21 Cong. Rec. 3402 (1890), but the Senate Judiciary Committee changed the wording without formal explanation. See id., at 10218 . Perhaps significance can be attached to the fact that under the House bill the courts of appeals would have been independent of the federal trial courts, being manned by full-time appellate judges; *503 the Senate version, on the other hand, generally provided that court of appeals duties would bé performed by the trial judges within each circuit. See § 3, 26 Stat. 827 .

The first Judiciary Act, Act of Sept. 24, 1789,. 1 Stat. 73 , used the terms “judgment” and “decree” in defining the appellate jurisdiction of both the Supreme Court, § 25, and the original circuit courts. §22.

See, e. g., 28 U. S. C. § 1341 (limitation on power of district courts to enjoin state taxing systems); 28 U. S. C. § 1739 (requiring that state judicial proceedings be accorded full faith and credit in federal courts); 28 U. S. C. §§ 2253-2254 (prescribing various restrictions on federal habeas corpus for state prisoners); 28 U. S. C. § 2281 (three-judge district court requirement); 28 U. S. C. § 2283 (restricting power of federal courts to enjoin state-court proceedings).

As pointed out in Tornillo, 418 U. S., at 247 n. 6, not only did uncertainty about Florida’s “right of reply” statute interfere with this important press function, but delay by this Court would have left the matter unresolved during the impending 1974 elections. In Mills , the Court observed that “there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” 384 U. S., at 218.

One important distinction between this case and Construction Laborers v. Curry, 371 U. S. 542 (1963), has already been discussed, supra, at 505-506. Another is that the federal issue here is constitutional, whereas that in Curry was statutory.

Cf. United States v. Sisson, 399 U. S. 267, 307 (1970) :

"Clarity is to be desired in any statute, but in matters of jurisdic *511 tion it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case.”