Federal and State Courts: Structure and Interaction
Congressional research reportAug 2, 2023
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Federal and State Courts: Structure and
Interaction
August 2, 2023
Congressional Research Service
https://crsreports.congress.gov
R47641
SUMMARY
Federal and State Courts: Structure and
Interaction
In the United States, the federal government and the states each have their own set of laws and
their own court systems. Federal and state courts vary in structure, with significant differences
between the federal and state judiciaries as well as variation among the different states. Federal
and state courts generally operate separately, but there is not an absolute division between the
federal and state judicial systems. Sometimes, state courts decide questions of state law and
federal courts decide questions of federal law. However, state courts can also hear many types of
federal law claims, and there are circumstances in which federal courts apply state law. Federal
courts can also review state court decisions that may conflict with the U.S. Constitution or federal
law. In addition, cases or legal issues can move between the two judicial systems.
R47641
August 2, 2023
Joanna R. Lampe
Legislative Attorney
Laura Deal
Law Librarian
This report provides an overview of the different structures and functions of federal and state courts and the relationship
between the two judicial systems. The report first provides an overview of the federal judiciary. The federal judicial system
includes courts established under Article III of the Constitution, with judges who are appointed by the President with the
advice and consent of the Senate. Judges appointed to these courts hold office “during good Behaviour” (which has been
interpreted to grant them tenure for life unless they resign or are impeached and removed) and are also protected from having
their salaries diminished while in office. The federal judicial system also includes other tribunals, sometimes called Article I
courts or legislative courts, whose judges do not have the same constitutional protections as Article III judges. The
Constitution limits the matters Article I courts can decide, but these courts can hear cases in territorial courts and military
courts, “public rights” cases involving disputes between private actors and the government, and cases where decisionmakers
serve as “adjuncts” to Article III courts.
This report also surveys key features of state court systems, highlighting general trends and differences between the state and
federal judicial systems. It then discusses legal issues concerning the relationship between federal and state courts, including
the jurisdiction of federal and state courts, when state courts apply federal law and vice versa, federal review of state court
decisions and other state actions, and how cases or legal issues may move between state and federal court. The report
concludes with discussion of selected considerations for Congress, including whether to direct cases to federal or state court
and federal funding for federal and state courts. An appendix to the report includes additional information about selection and
retention of judges on each state’s highest court.
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Federal and State Courts: Structure and Interaction
Contents
Overview of Federal and State Courts............................................................................................. 2
Federal Courts ........................................................................................................................... 3
Article III Courts ................................................................................................................. 3
Non–Article III Federal Courts ........................................................................................... 7
State Courts ............................................................................................................................. 12
Structure of State Courts ................................................................................................... 12
Appointment or Election of Judges................................................................................... 13
Term and Age Limits ........................................................................................................ 14
Voting Rules ...................................................................................................................... 15
Jurisdiction: Which Courts Can Hear Which Cases ...................................................................... 15
Subject Matter Jurisdiction ..................................................................................................... 16
Personal Jurisdiction ............................................................................................................... 18
Venue and Other Considerations ............................................................................................. 19
Choice of Law: Applying Federal or State Law ............................................................................ 19
State Courts Applying Federal Law ........................................................................................ 20
Federal Courts Applying State Law ........................................................................................ 21
Federal Court Review of State Court Decisions ............................................................................ 22
Moving Between State and Federal Court..................................................................................... 23
Considerations for Congress.......................................................................................................... 24
Directing Cases to Federal or State Court ............................................................................... 24
Funding for State and Federal Courts ..................................................................................... 25
Tables
Table A-1. Survey of Selection Methods and Retention Requirements for State High
Court Judges ............................................................................................................................... 27
Table A-2. Survey of Age Limits for State High Court Judges ..................................................... 33
Appendixes
Appendix. Selection and Retention of State High Court Judges ................................................... 27
Contacts
Author Information........................................................................................................................ 35
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Federal and State Courts: Structure and Interaction
n the United States, the federal government and the states each have their own sets of laws
and their own court systems. Sometimes, state courts decide questions of state law and federal
courts decide questions of federal law. However, there is not an absolute division between the
federal and state judicial systems. State courts can hear many types of federal law claims, and
there are also circumstances in which federal courts apply state law.1 Federal courts may also
review state court decisions that allegedly conflict with the U.S. Constitution or federal law.2 In
addition, cases or legal issues may move between the two judicial systems through mechanisms
such as removal from state to federal court or certification of legal questions from federal to state
court.3
I
The federal judiciary operates as a relatively unified system subject to substantive laws and
procedural rules that usually apply nationwide.4 Many federal judges enjoy constitutional
protections designed to insulate them from political influence, including life tenure “during good
Behaviour” and salaries that cannot be reduced.5 By contrast, each state operates its own judicial
system. State court systems vary significantly, but state court judges generally do not enjoy all the
same constitutional protections as federal judges.6
The complex relationship between state and federal courts is governed by constitutional
provisions, federal and state statutes, and prudential doctrines such as federal-state comity.7 The
U.S. Constitution’s Supremacy Clause provides that the Constitution and federal laws and treaties
are the “supreme Law of the Land.”8 This means that the Constitution and federal law prevail
over conflicting state laws, and state courts must apply federal law when it governs a case.9 It also
means that federal courts, particularly the Supreme Court, are the final authority on interpreting
federal law and possess the constitutional authority to review state court decisions that allegedly
conflict with the Constitution or federal law.10
Although the federal courts are the final authority on federal law when they have the power to act,
there are important limits on federal judicial power. In particular, Article III of the Constitution
and applicable federal statutes limit federal court subject matter jurisdiction to specified
categories of “Cases” and “Controversies.”11
1 See infra “Choice of Law: Applying Federal or State Law”
2 See infra “Federal Court Review of State Court Decisions.”
3 See infra “Moving Between State and Federal Court.”
4 Lower federal courts and state courts may differ in how they interpret federal law, and lower court decisions may
constitute binding precedent for some federal courts but not others. These features of the federal judicial system result
in discrepancies (sometimes called “circuit splits”) that the Supreme Court may resolve. See, e.g., Sup. Ct. R. 10
(stating that the Supreme Court may grant review in cases where “a United States court of appeals has entered a
decision in conflict with the decision of another United States court of appeals on the same important matter” or “has
decided an important federal question in a way that conflicts with a decision by a state court of last resort”). In addition,
each federal court may create local procedural rules to govern proceedings in that court. See, e.g., 28 U.S.C. § 2071.
5 U.S. CONST. art. III, § 1.
6 See infra “State Courts.”
7 The Supreme Court has explained that comity is “a proper respect for state functions, a recognition of the fact that the
entire country is made up of a Union of separate state governments, and a continuance of the belief that the National
Government will fare best if the States and their institutions are left free to perform their separate functions in their
separate ways.” Younger v. Harris, 401 U.S. 37, 44 (1971).
8 U.S. CONST. art. VI, cl. 2.
9 See Cong. Rsch. Serv., Overview of Supremacy Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00013395/ (last visited July 18, 2023).
10 See id.; see also infra “State Court Enforcement of Federal Law: Supreme Court Review”, “Habeas Review.”
11 U.S. CONST. art. III, § 2, cl. 1.
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In contrast to the limited jurisdiction of the federal courts, the states operate courts of general
jurisdiction, which are not bound by federal constitutional limits on the types of cases they can
hear.12 As part of such general jurisdiction, state courts have the authority to hear most cases that
raise issues under the Constitution or federal law, except in areas where the federal courts possess
exclusive jurisdiction.13 Just as federal courts are the ultimate interpreters of federal law, state
courts are the ultimate authority on the meaning of state law. Federal courts may apply state law,
decide questions of state law when needed to resolve a case, and strike down state laws or other
state actions that conflict with federal law or the Constitution.14 However, if a state’s own courts
have definitively interpreted a state law, the federal courts must accept that interpretation.15
This report provides an overview of federal and state courts and the relationship between the two
judicial systems. The report first provides an overview of the federal judiciary, including courts
created pursuant to authority granted to Congress in Article III of the Constitution (Article III
tribunals) and courts created pursuant to other provisions of the Constitution (non–Article III
tribunals).16 It discusses selected features of state judicial systems and how state courts differ
from federal courts.17 The report then surveys key legal issues related to federal and state courts,
including the jurisdiction of federal and state courts,18 when state courts apply federal law and
vice versa19 federal review of state court decisions and other state actions,20 and how cases or
legal issues may move between state and federal court.21 The report concludes with discussion of
selected legal considerations for Congress.22
Overview of Federal and State Courts
Article III of the Constitution lays the foundation for the federal judiciary, imposes limits on the
federal judicial power, and provides protections for federal judges designed to ensure judicial
independence from the executive and legislative branches. Within that constitutional framework,
Congress possesses broad authority to establish and regulate federal courts, especially the lower
federal courts. Congress has changed the size and structure of the federal courts throughout the
history of the United States.23
12 Court of General Jurisdiction, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A court having unlimited or nearly
unlimited trial jurisdiction in both civil and criminal cases.”). States may also establish specialty courts with limited
jurisdiction, such as family courts or land courts, but each state has courts of general jurisdiction. See infra “Structure
of State Courts.”
13 E.g., Claflin v. Houseman, 93 U.S. 130, 136 (1876) (“[I]f exclusive jurisdiction be neither express nor implied, the
State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it.”); Charles
Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962) (“We start with the premise that nothing in the concept of our
federal system prevents state courts from enforcing rights created by federal law.”).
14 See infra “Federal Courts Applying State Law.”
15 See id.
16 See infra “Federal Courts.”
17 See infra “State Courts.”
18 See infra “Jurisdiction: Which Courts Can Hear Which Cases”
19 See infra “Choice of Law: Applying Federal or State Law”
20 See infra “Federal Court Review of State Court Decisions.”
21 See infra “Moving Between State and Federal Court.”
22 See infra “Considerations for Congress.”
23 For discussion of changes to the size of the Supreme Court, see CRS Report R47382, Congressional Control over the
Supreme Court, by Joanna R. Lampe. For information on the lower courts, see Chronological History of Authorized
Judgeships - District Courts, U.S. CTS., https://www.uscourts.gov/judges-judgeships/authorized(continued...)
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While the Constitution and federal statutes govern the federal courts, state courts are established
pursuant to each state’s constitution and laws. Like federal courts, state courts have evolved as the
nation developed.24 New state courts have been created as new states joined the union, and states
have modified the structure of existing courts. This section outlines the current structure of the
federal judiciary, then discusses selected features of state court systems.
Federal Courts
Federal courts fall into two broad categories: courts established pursuant to Article III of the
Constitution, sometimes called Article III courts, and other adjudicative bodies that are
sometimes called non–Article III courts, legislative courts, or Article I courts.
Article III of the Constitution vests the federal judicial power in the judicial branch, sets the outer
boundaries of that power, and seeks to protect the judiciary from undue political influence.
Federal courts established pursuant to Article III include the Supreme Court, the U.S. Courts of
Appeals, the federal district courts, and certain specialized tribunals.25 In addition to Article III
courts, Congress has established other tribunals pursuant to its powers under Article I of the
Constitution.26 These courts may handle specialized subject matter, or they may have jurisdiction
over federal areas such as U.S. territories and the District of Columbia.27
Article III Courts
Article III courts are defined by certain constitutional requirements that apply to all Article III
judges. First, Article III judges must be nominated by the President and confirmed by the
Senate.28 Second, once on the bench, Article III judges hold office “during good Behaviour,”
which has been interpreted to grant them tenure for life unless they resign or are impeached and
removed.29 Third, Congress cannot reduce the salary of Article III judges during their time in
office.30
The federal Article III courts comprise three main levels: trial-level federal district courts located
in each state, the District of Columbia, and Puerto Rico; intermediate courts of appeals; and the
Supreme Court. Congress has also established specialized Article III tribunals. The Constitution
provides that the federal judicial power “shall be vested in one supreme Court,” but it leaves to
judgeships/chronological-history-authorized-judgeships-district-courts (last visited July 18, 2023); Chronological
History of Authorized Judgeships - Courts of Appeals, U.S. CTS., https://www.uscourts.gov/judgesjudgeships/authorized-judgeships/chronological-history-authorized-judgeships-courts-appeals (last visited July 18,
2023).
24 See, e.g., New York State Court of Appeals, HIST. SOC’Y OF THE N.Y. CTS., https://history.nycourts.gov/court/nyscourt-appeals/ (last visited July 18, 2023); New York State Supreme Court, HIST. SOC’Y OF THE N.Y. CTS.,
https://history.nycourts.gov/court/nys-supreme-court/ (last visited July 18, 2023); The Supreme Court of Virginia
Information Pamphlet, VIRGINIA SUP. CT., https://www.vacourts.gov/courts/scv/scvinfo.pdf (last visited July 18, 2023).
25 See infra “Article III Courts.”
26 See infra “Non–Article III Federal Courts.”
27 As discussed further below, the District of Columbia has both Article III and non–Article III courts. See infra “U.S.
Courts of Appeals”; “U.S. District Courts”; “District of Columbia Local Courts.”
28 U.S. CONST. art. II, § 2, cl. 2.
29 U.S. CONST. art. III, § 1.
30 Id.
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Congress the discretion whether to establish lower federal courts by statute.31 As of July 2023, the
Article III courts include the following tribunals.
Supreme Court of the United States
The Supreme Court is the nation’s highest court, with jurisdiction to review decisions of the lower
federal courts as well as decisions of the states’ highest courts that raise questions under the
Constitution or federal laws or treaties.32 The Supreme Court sits as a single panel, which, since
1869, has comprised nine members: one Chief Justice and eight Associate Justices.33
The Constitution and federal statutes provide for Supreme Court original jurisdiction34 or
mandatory appellate review in certain narrow categories of cases.35 In most cases, however,
parties seek Supreme Court review on appeal from a decision of a state court or lower federal
court via a discretionary petition for a writ of certiorari. The Court then has the discretion to
choose which appeals to hear.36 The Court receives thousands of petitions for certiorari each year
and has recently granted certiorari in about 50-80 cases annually.37 The Court is mostly likely to
hear cases that present novel and important questions of federal constitutional or statutory law,
often including legal questions on which different federal courts of appeals or state high courts
have reached different answers.38
The Court decides most matters by a majority vote, meaning that a party may prevail in a case if
five of the nine Justices agree with its position.39
U.S. Courts of Appeals
The intermediate federal appellate courts include thirteen courts of appeals with a total of 179
authorized permanent judgeships.40 Twelve of these courts are regional courts of appeals that
mainly exercise jurisdiction over cases arising in a particular geographic area. Eleven of the
regional courts of appeals cover groups of states and territories, hearing appeals from federal
district courts within those areas, and are designated by number.41 The twelfth regional court of
31 U.S. CONST. art. III, § 1. See also Cong. Rsch. Serv., Overview of Establishment of Article III Courts, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-8-1/ALDE_00013557/ (last visited July 28,
2023).
32 See About the Court, U.S. SUP. CT., https://www.supremecourt.gov/about/about.aspx (last visited July 18, 2023). The
Supreme Court also has original jurisdiction over certain cases. See infra note 35.
33 28 U.S.C. § 1.
34 Original jurisdiction means that a case begins in the Supreme Court rather than reaching the Court on appeal. Cong.
Rsch. Serv., Supreme Court Original Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited June 2, 2023).
35 U.S. CONST. art. III, § 2, cl. 2; 28 U.S.C. §§ 1251, 1253.
36 See, e.g., 28 U.S.C. §§ 1254, 1257.
37 See The Supreme Court at Work, U.S. SUP. CT., https://www.supremecourt.gov/about/courtatwork.aspx (last visited
July 18, 2023); Statistics, SCOTUS BLOG, https://www.scotusblog.com/statistics/ (last visited July 18, 2023).
38 See Sup. Ct. R. 10.
39 See Supreme Court Procedures, U.S. CTS., https://www.uscourts.gov/about-federal-courts/educationalresources/about-educational-outreach/activity-resources/supreme-1 (last visited July 18, 2023). If an even number of
Justices participate in a matter and their votes are split equally, the lower court’s judgment is “affirmed by an equally
divided Court.” See, e.g., LeDure v. Union Pacific R.R. Co., 142 S. Ct. 1582 (2022).
40 See Authorized Judgeships, U.S. CTS., https://www.uscourts.gov/sites/default/files/allauth.pdf (last visited July 18,
2023).
41 28 U.S.C. § 41. For instance, the U.S. Court of Appeals for the First Circuit (First Circuit) hears appeals from federal
(continued...)
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appeals is the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), which
covers only the District of Columbia.42 The remaining federal appeals court is the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit), which takes appeals from federal district courts
and certain administrative bodies and Article I courts in certain specific subject matter areas
identified by Congress.43
In addition to the circuit courts’ appellate jurisdiction, some types of cases, including judicial
review of certain federal agency actions, commence in the federal courts of appeals.44 Although
the district courts and most of the circuit courts have jurisdiction primarily based on geography,
Congress can enact legislation sending certain categories of cases to a particular federal court.45
The number of judges authorized by Congress for each regional court of appeals reflects, roughly,
a combination of that circuit’s population and its caseload.46 The First Circuit is the smallest with
six authorized judgeships, while the U.S. Court of Appeals for the Ninth Circuit is the largest with
twenty-nine. The D.C. Circuit covers by far the smallest geographic area and population.
However, because the federal government is based in Washington, D.C., many cases involving
the federal government proceed in the D.C. federal courts. The D.C. Circuit has 11 authorized
judgeships.47 The Federal Circuit has 12 authorized judgeships.48
Most matters before the federal appeals courts are decided by panels of three circuit judges.49
Each appeals court may, at its discretion, choose to hear or rehear (i.e., reconsider) a case en banc.
The phrase en banc, from the French for “on the bench,” means that a matter is submitted to the
full court or to a subset of the court that is larger than the usual three-judge panel.50 Three-judge
panels and en banc panels decide cases by a majority vote of the judges on the panel.
Like the Supreme Court, the federal appeals courts generally do not engage in factfinding.51
Unlike the Supreme Court, the appeals courts do not have discretion over whether to hear cases
and must rule on all appeals or petitions for review that are properly before them.52 For the large
proportion of federal court appeals in which the parties do not file a petition for a writ of
district courts in Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico (and from non–Article III
courts from the U.S. Virgin Islands), while the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit) covers
Alabama, Florida, and Georgia. Id.
42 Id.
43 Federal Circuit subject matter jurisdiction includes cases involving international trade, government contracts, patents,
trademarks, certain money claims against the U.S. government, federal personnel issues, veterans’ benefits, and public
safety officers’ benefits claims. See 28 U.S.C. § 1295; see generally Court Jurisdiction, U.S. CT. APPEALS FED.
CIR.,https://cafc.uscourts.gov/home/the-court/about-the-court/court-jurisdiction/. (last visited July 18, 2023).
44 See, e.g., 28 U.S.C. §§ 1296, 2342; 15 U.S.C. § 717r(b).
45 For instance, a provision of the Clean Air Act requires that certain administrative actions “based on a determination
of nationwide scope or effect” be reviewed in the D.C. Circuit. 42 U.S.C. § 7607(b)(1).
46 28 U.S.C. § 44; see also CRS Report R45899, Recent Recommendations by the Judicial Conference for New U.S.
Circuit and District Court Judgeships: Overview and Analysis, by Barry J. McMillion.
47 Id.
48 Id.
49 28 U.S.C. § 46.
50 En banc, Black’s Law Dictionary (11th ed. 2019). For courts with fewer than fifteen judges, all active judges on the
court participate in the en banc panel, while courts with more than fifteen judges constitute en banc panels drawn from
the Court’s active members. 28 U.S.C. § 46.
51 See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
52 See Fed. R. App. P. 3.
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certiorari or the Supreme Court denies review, a federal appeals court is the highest court that
reviews the case.53
U.S. District Courts
The district courts are trial-level courts where most federal litigation commences for both civil
and criminal matters.54 In cases involving factual disputes, district courts are primarily
responsible for resolving factual questions, which they do by conducting trials. Cases that go to
trial may be heard by juries, which resolves disputed questions of fact. (In such cases, district
court judges continue to resolve questions of law.) Other cases may be heard in a bench trial
without a jury, during which a district court judge resolves both factual and legal questions. In
addition to trying federal cases in the first instance, district courts also oversee U.S. bankruptcy
courts55 and provide judicial review of certain federal agency actions.56
Usually, a single district judge presides over each district court case. In a few relatively narrow
categories of cases, Congress has instead provided for trial by a three-judge district court
composed of two district judges and one circuit judge.57
There are currently 94 district courts with 663 permanent Article III judgeships.58 Each state has a
least one Article III district court, as do the District of Columbia and Puerto Rico.59 Some states
are divided into multiple judicial districts, and some districts are further divided into geographic
divisions.60
Cases brought before federal district courts can also be heard by U.S. magistrate judges.
Magistrate judges are not Article III judges and thus are limited in what matters they can decide.61
They are not nominated by the President and confirmed by the Senate but are rather appointed by
district judges in the districts in which they sit.62 Magistrate judges also do not enjoy life tenure
but instead are appointed for renewable terms of up to eight years and are also subject to an age
limit.63
53 See, e.g., Appeals, U.S. CTS., https://www.uscourts.gov/about-federal-courts/types-cases/appeals (last visited July 18,
2023).
54 See Court Role and Structure, U.S. CTS., https://www.uscourts.gov/about-federal-courts/court-role-and-structure (last
visited July 18, 2023).
55 28 U.S.C. § 157.
56 See CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
57 28 U.S.C. § 2284. Certain decisions of three-judge district courts are immediately appealable to the Supreme Court.
28 U.S.C. § 1253.
58 See Court Role and Structure, U.S. CTS., https://www.uscourts.gov/about-federal-courts/court-role-and-structure
(last visited July 18, 2023). This total includes three non–Article III territorial district courts for the territories of Guam,
the Northern Mariana Islands, and the U.S. Virgin Islands. There are a total of four authorized judgeships for those
three courts. See infra “Territorial District Courts.”
59 See 28 U.S.C. §§ 81-131. Several other U.S. territories have Article I district courts. See infra "&&.”
60 See, e.g., 28 U.S.C. § 124 (defining judicial districts and divisions in Texas).
61 See “Magistrate Judges” section of CRS Report R43746, Congressional Power to Create Federal Courts: A Legal
Overview, by Andrew Nolan and Richard M. Thompson II. Congressional offices with questions about Congress’s
power to create federal courts may contact Joanna Lampe.
62 28 U.S.C. § 631.
63 Id.
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Other Article III Courts
Specialized Article III courts serve a variety of functions, but all are comprised of judges with life
tenure who are appointed by the President and confirmed by the Senate. For example, the U.S.
Court of International Trade hears civil actions based on customs and international trade laws.64
Uniquely among federal courts, the Court of International Trade is subject to a partisan balance
requirement: The applicable statute provides that not more than five of its judges shall be from
the same political party.65
The Foreign Intelligence Surveillance Act of 1978 established the Foreign Intelligence
Surveillance Court (FISA Court) and the Foreign Intelligence Surveillance Court of Review
(Court of Review).66 The FISA Court is responsible for issuing warrants authorizing the
government to conduct certain espionage activities, while the Court of Review serves to review
certain orders of the FISA Court.67 Both tribunals are staffed by judges who have already been
appointed by the President and confirmed by the Senate to judgeships on other Article III federal
courts. These judges serve staggered terms on the FISA Court or the Court of Review and may
then continue to serve on the courts to which they were originally nominated and confirmed.68
Sitting federal judges also make up the Judicial Panel on Multidistrict Litigation, a specialized
Article III body authorized by statute to transfer related cases to a single district court for
coordinated or consolidated pretrial proceedings.69 Likewise, the Alien Terrorist Removal Court
consists of five district court judges, serving staggered terms, who review ex parte applications
from the Department of Justice to order removal of certain aliens from the United States based on
classified information.70 It consists of five district court judges designated by the Chief Justice of
the United States[?] for staggered terms of five years.71
While the President appoints judges to serve on the Court of International Trade, the district court
judges who serve on the other specialized courts discussed above are selected from eligible sitting
Article III judges by the Chief Justice of the United States.
Non–Article III Federal Courts
In addition to the foregoing Article III tribunals, Congress has established multiple tribunals that
are not Article III courts but perform adjudicative functions. Judges on these tribunals, sometimes
64 See generally About the Court, U.S. CT. INT’L TRADE, http://www.cit.uscourts.gov/AboutTheCourt.html#jurisdiction
(last visited July 18, 2023).
65 Id.
66 About the Foreign Intelligence Surveillance Court, U.S. FOREIGN INTELLIGENCE SURVEILLANCE CT,
https://www.fisc.uscourts.gov/about-foreign-intelligence-surveillance-court (last visited July 18, 2023); United States
Foreign Intelligence Surveillance Court of Review, U.S. FOREIGN INTELLIGENCE SURVEILLANCE CT,
https://www.fisc.uscourts.gov/FISCR (last visited July 18, 2023).
67 Id.
68 50 U.S.C. §§ 1803(a)–(b), (d).
69 See CRS In Focus IF11976, Multidistrict and Multicircuit Litigation: Coordinating Related Federal Cases, by
Joanna R. Lampe.
70 8 U.S.C. §1532(a).
71 Id. The Alien Terrorist Removal Court has yet to conduct any proceedings. See, e.g., Won Kindane, Procedural Due
Process in the Expulsion of Aliens Under International, United States, and European Law: A Comparative Analysis, 27
EMORY INT’L L. REV. 285, 322 (2013).
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called Article I courts or legislative courts, do not enjoy the same constitutional protections as
Article III judges.72
Non–Article III courts are subject to certain constitutional limits. The Supreme Court has held
that most federal litigation must be heard by Article III judges who possess the necessary
constitutional protections.73 The Court has recognized certain exceptions to this rule, however,
allowing non–Article III tribunals to hear cases in territorial courts or military courts, “public
rights” cases involving disputes between private actors and the government, and cases where
decision-makers serve as “adjuncts” to Article III courts.74 The Article I courts include the
following types of tribunals.
Courts of Specialized Jurisdiction
Article I courts include multiple tribunals of specialized jurisdiction that have the authority to
decide certain specific types of cases. For instance, U.S. bankruptcy courts are Article I courts
that hear bankruptcy cases and certain related matters. District courts have jurisdiction over
bankruptcy cases, but as a practical matter, they refer most bankruptcy matters to the bankruptcy
courts as a matter of course.75 A bankruptcy case is generally tried before a single bankruptcy
judge in the first instance. Bankruptcy judges are not subject to the Constitution’s judicial
appointment and removal provisions. They are appointed by the courts of appeals of the circuit in
which their districts are located and serve renewable fourteen-year terms.76 A bankruptcy judge
may be removed during a term in office “only for incompetence, misconduct, neglect of duty, or
physical or mental disability,” as determined by a majority of the judicial council of the circuit in
which the judge sits.77
Review of bankruptcy court decisions differs among judicial circuits. Several circuits have
created bankruptcy appellate panels (BAPs), in which three-judge panels composed of bankruptcy
judges from the circuit review the initial decisions of single-judge bankruptcy courts.78 Decisions
of BAPs, in turn, may be appealed to the Article III courts of appeals for the relevant circuits.79 In
circuits that have not established BAPs, a bankruptcy court decision may be reviewed on appeal
by the district court for the district in which the bankruptcy court sits, then by the relevant court
72 See “Constitutional Limitations on Non-Article III Courts” section of CRS Report R43746, Congressional Power to
Create Federal Courts: A Legal Overview, by Andrew Nolan and Richard M. Thompson II. Congressional offices with
questions about Congress’s power to create federal courts may contact Joanna Lampe.
73 See, e.g., Stern v. Marshall, 564 U.S. 462, 482–84 (2011).
74 See generally CRS Report R43746, Congressional Power to Create Federal Courts: A Legal Overview, by Andrew
Nolan and Richard M. Thompson II. Congressional offices with questions about Congress’s power to create federal
courts may contact Joanna Lampe.
75 See, e.g., Standing Order, No. 12 Misc. 32 (S.D.N.Y. Jan. 31, 2012) (“Pursuant to 28 U.S.C. Section 157(a) any or all
cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 are
referred to the bankruptcy judges for this district.”),
https://www.nysd.uscourts.gov/sites/default/files/pdf/StandingOrder_OrderReference_12mc32.pdf. Since the 1970s,
bankruptcy courts have operated as adjuncts to the district courts. See Cong. Rsch. Serv., Bankruptcy Courts as
Adjuncts to Article III Courts, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-98/ALDE_00013611/ (last visited July 28, 2023).
76 28 U.S.C. § 152.
77 Id. § 152(e).
78 Id. § 158; see also Court Insider: What is a Bankruptcy Appellate Panel? U.S. CTS. (Nov. 26, 2012),
https://www.uscourts.gov/news/2012/11/26/court-insider-what-bankruptcy-appellate-panel.
79 Id.
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of appeals. The Supreme Court may review court of appeals decisions in bankruptcy cases via a
writ of certiorari.80
Another specialized Article I tribunal, the U.S. Tax Court, resolves certain types of disputes
between taxpayers and the government, including providing taxpayers a forum in which to
challenge such determinations before paying the deficiency.81 The Tax Court is composed of
nineteen judges. Tax Court judges are nominated by the President and confirmed by the Senate.
They sit for fifteen-year terms and can be removed by the President for “inefficiency, neglect of
duty, or malfeasance in office[.]”82 They are also subject to mandatory retirement at age seventy.83
The Tax Court is headquartered in Washington, D.C., but its judges travel to hold trials in
seventy-four designated U.S. cities.84
A single judge presides over a Tax Court case. Some Tax Court decisions may be appealed to the
U.S. Court of Appeals for the geographic circuit in which the Tax Court heard the case,85 while
the Tax Court makes a final, unappealable decision in a subset of cases where taxpayers opt for
treatment as “Small Tax Cases.”86
The U.S. Court of Federal Claims has jurisdiction over certain monetary claims against the
federal government, such as claims for tax refunds, federal pay, compensation for injuries caused
by vaccines, claims based on government contracts, and intellectual property claims.87 The Court
of Federal Claims is composed of sixteen judges who are nominated by the President and
confirmed by the Senate to serve fifteen-year terms.88 A judge may be removed during that term
only upon a finding by a majority of the judges on the U.S. Court of Appeals for the Federal
Circuit of “incompetency, misconduct, neglect of duty, engaging in the practice of law, or
physical or mental disability.”89
The Court of Federal Claims is based in the District of Columbia but may hear cases in other
locations in order to provide “reasonable opportunity to citizens to appear before the [court] with
as little inconvenience and expense to citizens as is practicable.”90 Each case is heard by a single
judge, with no jury trial available.91 Decisions of the Court of Federal Claims may be appealed to
the U.S. Court of Appeals for the Federal Circuit, then to the Supreme Court.92
The Court of Appeals for Veterans Claims (CAVC) provides the exclusive forum for veterans and
other claimants, such as veterans’ surviving spouses, to appeal decisions of the Board of Veterans’
Appeals denying veterans’ benefits.93
80 See 28 U.S.C. § 1254.
81 See generally CRS In Focus IF10331, U.S. Tax Court: A Brief Introduction, by Barry J. McMillion.
82 26 U.S.C. § 7443.
83 Id. § 7447.
84 Places of Trial, U.S. TAX CT., https://www.ustaxcourt.gov/dpt_cities.html (last visited July 18, 2023).
85 26 U.S.C. § 7482(a)(1).
86
26 U.S.C. § 7463; Information About Filing a Case in the United States Tax Court,
https://www.ustaxcourt.gov/forms/Petition_Kit.pdf (last visited July 18, 2023).
87 About the Court, U.S. CT. FED. CLAIMS, https://www.uscfc.uscourts.gov/about-court (last visited July 18, 2023).
88 28 U.S.C. § 171.
89 Id. § 176.
90 Id. § 173.
91 Id. § 174.
92 Id. §§ 1254, 1295.
93 See generally CRS In Focus IF11365, U.S. Court of Appeals for Veterans Claims: A Brief Introduction, by Jonathan
M. Gaffney; see also 38 U.S.C. § 7251.
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The CAVC consists of nine judges. Judges are appointed by the President and confirmed by the
Senate for fifteen-year terms and may be reappointed for additional terms. A judge may be
removed by the President during a term only for “misconduct, neglect of duty, engaging in the
practice of law,” or living more than fifty miles from Washington, D.C.94
Like the Court of Federal Claims, the CAVC is based in the District of Columbia but may hold
proceedings in other locations.95 A case may be heard either by a single judge or by a panel of
three judges. Decisions of a single judge may be reviewed by a three-judge panel. Decisions of
either a single judge or a three-judge panel may be reviewed by the entire court sitting en banc.
Decisions of the CAVC may be appealed to the U.S. Court of Appeals for the Federal Circuit,
then to the Supreme Court. However, review by the Federal Circuit is generally limited to legal
questions.96
The U.S. Court of Appeals for the Armed Forces (CAAF) hears appeals brought by persons
convicted at courts-martial under the Uniform Code of Military Justice challenging decisions of
the Army, Navy, Marine Corps, Air Force, and Coast Guard Courts of Criminal Appeals.97
The CAAF consists of five judges, who must be “appointed from civilian life” by the President
and confirmed by the Senate.98 Judges serve for fifteen-year terms with no bar on reappointment
after a term expires. During a term, a judge may be removed by the President only for neglect of
duty, misconduct, or mental or physical disability.99
The CAAF generally sits in Washington, D.C., but has the authority to sit anywhere in the United
States. Decisions of the CAAF may be appealed directly to the Supreme Court via a petition for a
writ of certiorari.100
Territorial District Courts
Although they are referred to as “district courts,” the federal district courts in Guam, the Virgin
Islands, and the Northern Mariana Islands are legislative courts that differ from the Article III
district courts in the states, the District of Columbia, and Puerto Rico.101 Congress established
these territorial district courts pursuant to its Article IV power to “make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United States.”102 Judges
on these courts are appointed by the President with the advice and consent of the Senate.
However, they serve for terms of ten years rather than for life and may be removed by the
President “for cause.”103 The district courts in Guam, the Virgin Islands, and the Northern
94 38 U.S.C. § 7253.
95 Id. § 7255.
96 Id. § 7292.
97 See generally CRS In Focus IF12296, U.S. Court of Appeals for the Armed Forces: A Brief Introduction, by Andreas
Kuersten; see also 10 U.S.C. § 941.
98 10 U.S.C. § 942. “A person may not be appointed as a judge of the [CAAF] within seven years after retirement from
active duty as a commissioned officer of a regular component of an armed force.” Id. § 942(b)(4).
99 Id.
100 28 U.S.C. § 1259. An individual can also collaterally challenge CAAF a decision through a petition for a writ of
habeas corpus filed in district court or through a claim for back pay filed in the Court of Federal Claims. See Kuersten,
supra note 97.
101 See “Territorial Courts” section of CRS Report R43746, Congressional Power to Create Federal Courts: A Legal
Overview, by Andrew Nolan and Richard M. Thompson II. Congressional offices with questions about Congress’s
power to create federal courts may contact Joanna Lampe.
102 U.S. CONST. art. IV, § 3, cl. 2.
103 48 U.S.C. §§ 1424, 1424b, 1611, 1614, 1821.
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Mariana Islands exercise jurisdiction similar to that of the other federal district courts. As with the
Article III district courts, a decision of a territorial district court is subject to appellate review by
the U.S. court of appeals of the circuit where the district court is located, then by the Supreme
Court.104
In addition to territorial district courts, most U.S. territories have local courts that function much
like state courts. Congress has enacted legislation to establish local courts for the U.S. territory of
Guam.105 Local courts for Puerto Rico, the Virgin Islands, and the Northern Mariana Islands are
not established directly under federal law.106 American Samoa does not have a district court but
instead has a High Court that has jurisdiction over local matters and also exercises limited
jurisdiction over federal matters.107
District of Columbia Local Courts
As noted above, the District of Columbia has a federal district court and a federal appeals court
established under Article III.108 Those courts have the same statutory basis and structure, and
similar subject matter jurisdiction, as the other Article III district courts and regional courts of
appeals.
In addition to those Article III federal courts, Congress has also established local D.C. courts
known as the D.C. Superior Court and the D.C. Court of Appeals.109 Because Congress exercises
authority over the District of Columbia, those courts are organized under federal rather than state
law.110 However, they serve a role comparable to that of state courts, administering and
interpreting the District of Columbia’s local laws.
Judges on the D.C. Superior Court and the D.C. Court of Appeals are appointed by the President
based on a list of candidates prepared by the District of Columbia Judicial Nomination
Commission.111 Nominees must be confirmed by the Senate. They serve renewable fifteen-year
terms, with a mandatory retirement age of seventy-four.112 Decisions of the D.C. Superior Court
are subject to review on appeals by the D.C. Court of Appeals, then by the U.S. Supreme Court
via a writ of certiorari.113
104 28 U.S.C. §§ 41, 1254.
105 48 U.S.C. § 1424-1.
106 See Leyes y Reglamentos del Poder Judicial (Laws and Regulations of the Judiciary), PODER JUDICIAL DE PUERTO
RICO (PUERTO RICAN JUDICIARY), https://poderjudicial.pr/leyes-y-reglamentos-de-la-rama-judicial/ (last visited July 18,
2023); History of the V. I. Judiciary, JUDICIAL BRANCH OF THE U.S. VIRGIN ISLANDS,
https://www.vicourts.org/about_us/overview_of_judiciary_of_the_virgin_islands/history_of_the_v__i__judiciary (last
visited July 18, 2023); Northern Marianas Judiciary Historical Society, THE NORTHERN MARIANA ISLANDS JUDICIARY:
A HISTORICAL OVERVIEW 43–50 (2011).
107 GAO, American Samoa: Issues Associated with Some Federal Court Options 11 (Sept. 18, 2008),
https://www.gao.gov/assets/gao-08-1124t.pdf. Federal matters arising in American Samoa that cannot be adjudicated in
Samoan courts generally proceed in federal courts in Hawaii or the District of Columbia. See id.
108 28 U.S.C. §§ 41, 88; see also supra “U.S. Courts of Appeals”; “U.S. District Courts.”
109 District of Columbia Court Reorganization Act of 1970, Pub. L. 91-358, 84 Stat. 475.
110 U.S. CONST. art. I, § 8, cl. 17.
111 D.C. Code § 1-204.31(c).
112 Id. Judges of the D.C. courts are subject to removal by a Tenure Commission based on conviction of a felony,
misconduct, failure to perform judicial duties, or “any other conduct which is prejudicial to the administration of justice
or which brings the judicial office into disrepute.” D.C. Code § 1-204.32. They may also be required to retire due to
mental or physical disability. Id.
113 D.C. Code § 1-204.31(a); 28 U.S.C. § 1257. The D.C. Court of Appeals is treated as the “highest court of a State”
(continued...)
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State Courts
Each state has its own judicial system, and there is significant variation between the federal and
state courts and among state judiciaries. One key distinction between state and federal courts is
that state court judges generally do not have the same constitutional protections that Article III
provides for federal judges. As discussed further below, state judges may be selected differently
than federal judges, and most do not enjoy life tenure once on the bench. While federal
substantive law and procedural rules are fairly uniform throughout the country, state substantive
laws and procedural rules may vary significantly.
This section provides an overview of state court systems, highlighting general trends and
differences between the state and federal judicial systems. An appendix to this report includes
additional information about selection and retention of judges on each state’s highest court.114
Structure of State Courts
State courts are established under each state’s constitution, and like the federal courts, aspects of
their structure and proceedings may also be governed by statute. While the structure of state
courts varies widely, each state has trial-level courts and at least one appellate court that can
review lower court decisions. The highest court is often called the state supreme court, though
some states use different names.115 In addition to a supreme court, most states also have one or
more intermediate appellate courts, which can review decisions of the trial courts in the first
instance.116
State appellate courts may be required to hear all appeals that are properly before them, similar to
the federal intermediate appellate courts, or they may have discretion over whether to hear
appeals, like the U.S. Supreme Court does in most cases. In many states with intermediate
appellate courts, a litigant has a right to appeal to an intermediate appeals court, while the state
supreme court has discretion whether to review most or all cases.117 Sometimes the procedure for
appellate review depends on the type of case. For instance, in Massachusetts, most cases may be
appealed as of right to the Massachusetts Appeals Court (meaning that the court must hear those
cases), and the Supreme Judicial Court then has discretion over whether or not to review the
appellate court’s decisions. However, the Supreme Judicial Court has exclusive and mandatory
jurisdiction over appeals from first-degree murder convictions.118 Similarly, a criminal defendant
for purposes of Supreme Court review. 28 U.S.C. § 1257(b); see also infra “Federal Court Review of State Court
Decisions.”
114 See infra Appendix.
115 For instance, the highest courts in Massachusetts and Maine are called the “Supreme Judicial Court.” See Supreme
Judicial Court, STATE OF MAINE JUDICIAL BRANCH, https://www.courts.maine.gov/courts/sjc/index.html (last visited
July 18, 2023); Massachusetts Supreme Judicial Court (SJC), MASS.GOV, https://www.mass.gov/orgs/massachusettssupreme-judicial-court (last visited July 18, 2023). New York’s highest court is called the “New York State Court of
Appeals,” while the statewide trial court system is called the “Supreme Court.” See Court System Outline, CT. OF
APPEALS STATE OF N.Y., https://www.nycourts.gov/ctapps/outline.htm (last visited July 18, 2023).
116 Delaware, Maine, Montana, New Hampshire, Rhode Island, South Dakota, Vermont, and Wyoming do not have
intermediate appellate courts. See Benjamin D. Battles, A Short Guide to Vermont Appellate Practice, 48-SPG VT. B.J.
28, 28 n.5 (2022), https://www.vtbar.org/wp-content/uploads/2022/05/Ben-Battles.pdf.
117 See, e.g., Steven Shavell, On the Design of the Appeals Process: The Optimal Use of Discretionary Review Versus
Direct Appeal, 39 J. LEGAL STUD. 63, 84 & n.33 (2010).
118 MASS. GEN. LAWS ch. 221A, § 10; MASS. GEN. LAWS ch. 278, § 33E; see also Learn About the Court Appellate
Process, MASS.GOV, https://www.mass.gov/info-details/learn-about-the-court-appellate-process (last visited July 18,
2023).
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sentenced to death in California is entitled to an automatic direct appeal to the California
Supreme Court.119
As in the federal judiciary, states may create specialized courts at the trial or appellate level or
both. For instance, some states have created separate appellate courts to hear civil and criminal
appeals.120 Specialized trial courts at the state level may include probate courts, family courts,
juvenile courts, small claims courts, or others.121
Appointment or Election of Judges
States vary in their provision for selection and retention of judges. Just as the Framers debated the
appropriate balance of independence, efficiency, and accountability for federal judges under
Article III of the Constitution, the features of various state systems reflect different attempts to
achieve these same goals. In contrast to the federal judiciary, most states require judges to stand
for election either to be selected for office initially or to remain on the bench. State laws related to
the selection and retention of judges may vary depending on the level of court at issue. For
instance, judges on Tennessee appellate courts are appointed by the governor and confirmed by
the state’s general assembly, while trial court judges are elected.122
Twenty-one states provide for direct election of judges on their highest courts.123 In some states,
judicial elections are partisan, while in others, they are nonpartisan.124 In most other states, judges
are appointed by the governor, often subject to confirmation by the state legislature or another
body. In seventeen states, the governor is required to select a nominee from a list prepared by a
body such as a judicial nominating commission.125 In six states, the governor chooses nominees
freely, similar to the federal system.126 In New Hampshire, the governor and a state executive
council appoint judges.127 In Indiana and Iowa, a judicial nominating commission appoints judges
without the involvement of the governor.128 In South Carolina, the state general assembly elects
supreme court justices from a list provided by a judicial merit selection commission.129 Similarly,
in Virginia, supreme court justices are chosen by a vote of the state general assembly.130
119 See CAL. PENAL CODE § 1239; see also Office of Victims’ Services, California Attorney General’s Office, A
Victim’s Guide to the Capital Case Process 3 https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/deathpen.pdf
(last visited July 18, 2023).
120 See, e.g., Court Structure of Texas, TEX. JUDICIAL BRANCH, https://www.txcourts.gov/media/1455946/courtstructure-chart-january-2023.pdf (Jan. 2023); About The Court of Appeals, TNCOURTS.GOV,
https://tncourts.gov/courts/court-appeals/about (last visited July 18, 2023); About The Court of Criminal Appeals,
TNCOURTS.GOV, https://tncourts.gov/courts/court-criminal-appeals/about (last visited July 18, 2023). Pennsylvania has
a specialized court that handles matters including appeals from decisions of state government agencies. See Learn,
UNIFIED JUDICIAL SYS. PA., https://www.pacourts.us/learn/ (last visited July 18, 2023).
121 See Special Courts, 20 Am. Jur. 2d Courts § 11.
122 See Tenn. Const. art. VI, § 3; TENN. CODE ANN. §§ 17-1-103, 17-4-101.
123
See infra Appendix.
124 Compare, e.g., Ala. Const. art. VI, §§ 152, 154 (providing for partisan elections); ALA. CODE § 12-2-1 (same); Ill.
Const. art. VI, §§ 10, 12 (same), with Ark. Const. amend. 80, §§ 16(A), 18(A) (providing for nonpartisan elections);
Ga. Const. art. VI, § VII, para. I (same).
125 See infra Appendix.
126 See id.
127 N.H. Const. pt. 2 arts. 46, 73.
128 Ind. Const. art. 7, §§ 9, 11; Iowa Const. art. V §§ 16, 17.
129 S.C. Const. Ann. art. V, §§ 3, 27.
130 Va. Const. art. VI, § 7.
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Once on the bench, most state judges must periodically stand for election to remain in office. In
every state that provides for direct election of judges, judges must periodically stand for
reelection.131 Usually, such elections work similarly to the initial election, but in New Mexico,
judges running for subsequent terms must obtain 57% of the vote to be retained in office.132 In
sixteen states where the governor or a nominating commission appoints judges, the judges serve
initial terms and then stand for election to remain in office.133 Judges who seek retention or
reelection are usually successful.134
In a handful of states, a judge serves for a term of years and may then be reappointed by the
governor, the state legislature, or another government body for one or more additional terms.135 In
Massachusetts, New Hampshire, and Rhode Island, judges serve during good behavior once
appointed and confirmed, subject to age limits if applicable.136 In New Jersey, judges serve for
initial terms of seven years, after which the governor may reappoint them to serve during good
behavior until they reach mandatory retirement age.137
Term and Age Limits
In every state but Massachusetts, New Hampshire, and Rhode Island, judges on the state’s highest
court serve for renewable terms of years.138 In some states, the length of judicial terms varies by
court, with judges on higher courts serving longer terms than judges on lower courts. For
instance, the Montana Constitution provides that “[t]erms of office shall be eight years for
supreme court justices, six years for district court judges, four years for justices of the peace, and
as provided by law for other judges.”139 Other states provide for uniform terms at multiple levels
of the judiciary.140 In some states, high court judges serve for short initial terms, which are
followed by longer second or subsequent terms if the judges are retained in retention elections.
For instance, in Nebraska, supreme court justices are appointed by the governor for initial threeyear terms then can stand in retention elections for additional six-year terms.141 In New Jersey,
supreme court judges serve for initial terms of years then may be reappointed to serve indefinitely
during good behavior, subject to an age limit.142 No state expressly limits the number of times a
supreme court judge may seek reelection, retention, or reappointment.
131 See infra Appendix.
132 N.M. Const. art. VI, §§ 33(1)–(2).
133 See infra Appendix.
134 The rate of retention is higher in uncontested retention votes than in contested elections. See, e.g., Brian T.
Fitzpatrick, The Politics of Merit Selection, 74 MO. L. REV. 675, 684 (2009) (citing studies finding that “[i[ncumbent
[state] high-court judges are returned to the bench 99% of the time across the country when they run in retention
referenda,” while “justices running for reelection in states that use partisan elections were defeated nearly 23% of the
time”). See also B. M. Dann & Randall M. Hansen, Judicial Retention Elections, 34 Loy. L.A. L. Rev. 1429 1429-30
(2001).
135 See id.
136 Mass. Const. pt. 2, ch. III, art. I; N.H. Const. pt. 2 art. 73; R.I. Const. art. X, § 5.
137 N.J. Const. art. VI, § VI, para. 3.
138 See infra Appendix.
139 Mont. Const. art. 7, § 7.
140 See, e.g., N.C. Cont. art. IV, § 16.
141 Neb. Const. art. V, § 21.
142 N.J. Const. art. VI, § VI, para. 3.
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Thirty-five states impose age limits for judges. Some of these states provide that retirement
occurs automatically upon a judge reaching a certain age.143 Others allow a judge who reaches
retirement age during a judicial term to complete the term or otherwise provide for a limited grace
period before retirement.144 Two states do not impose a mandatory retirement age but allow for
required retirement of judges who cannot perform their duties due to age or incapacity.145
Thirteen states do not impose age limits or mandatory retirement. Most of those states require
judges to stand for reelection or retention periodically. Due to the combination of election and
retention requirements and age limits, Rhode Island is the only state in which state supreme court
judges enjoy life tenure during good behavior once appointed, similar to federal Article III
judges.146
Voting Rules
As noted above, federal courts sitting as multi-judge panels (including the Supreme Court and
U.S. Courts of Appeals) decide cases by majority vote.147 Most state high courts sitting in multijudge panels likewise decide cases by majority vote. However, two states—North Dakota and
Nebraska—require the agreement of a supermajority of state supreme court justices before the
court can hold a state statute to be unconstitutional. The Nebraska Constitution requires the
concurrence of five out of seven judges of the state supreme court in order to strike down a law.148
The North Dakota Constitution requires the agreement of four out of five state supreme court
justices to hold a law unconstitutional.149 Ohio imposed a supermajority voting requirement in
1912 but repealed it in 1968.150 By making it more difficult for courts to invalidate legislation,
supermajority voting rules have the effect of limiting the power of courts with respect to the
legislature.151
Jurisdiction: Which Courts Can Hear Which Cases
Jurisdiction is the power of a court to decide a case. There are two types of jurisdiction: Personal
jurisdiction is a court’s authority to adjudicate the rights of the persons or entities before it, while
subject matter jurisdiction is the authority to decide a particular legal question.152 A court must
143 See, e.g., ALASKA STAT. § 22.25.010; Colo. Const. art. VI, § 23.
144 See, e.g., Ala. Const. art. VI, § 155; 705 ILL. COMP. STAT. ANN. 55/1.
145 See Nev. Const. art. 6, § 21(8)(b); W. Va. Const. art. VIII, § 8. States that impose age limits may also provide for
required retirement of judges due to advanced age or physical or mental disability. See, e.g., Ma. Const. pt. 2, C. 3, art.
1. Federal Article III judges may not be removed due to disability, but federal law creates procedures to resolve
complaints of judicial disability. Judges unable to discharge their office by reason of disability may be asked to retired
or may not be assigned new cases. See 28 U.S.C. §§ 251-255.
146 R.I. Const. art. X, § 5.
147 See supra “Supreme Court of the United States”; “U.S. Courts of Appeals.”
148 Neb. Const. art. V, § 2
149 N.D. Const. art VI, §§ 2, 4.
150 See Evan Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rules: Lessons from the
Past, 78 IND. L.J. 73, 90-91 (2003)
151 See id. Some commentators and lawmakers have advocated for imposing a supermajority voting requirement on the
U.S. Supreme Court. For discussion of such proposals, see “Voting Rules and Congressional Override” section of CRS
Report R47382, Congressional Control over the Supreme Court, by Joanna R. Lampe.
152 See Jurisdiction, Black’s Law Dictionary (11th ed. 2019).
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have both personal jurisdiction over the parties and subject matter jurisdiction over the legal
questions presented in order to rule on a case.153
The U.S. Constitution and federal statutory law define the jurisdiction of the federal courts.154
State constitutions and statutes establish state courts’ jurisdiction subject to certain limits under
the U.S. Constitution.155 As discussed further below, sometimes more than one court has the legal
authority to hear a case, and litigants may be able to choose whether to proceed in federal or state
court or to select between multiple specific courts within the federal or state judiciary.
Subject Matter Jurisdiction
The Constitution grants the federal courts limited subject matter jurisdiction, and thus federal
courts may hear only cases that fall within certain enumerated categories.156 By contrast, each
state has at least one court that may exercise general jurisdiction, meaning that it may hear any
type of cases unless a specific limit under the Constitution or federal or state law applies.157
Beginning with federal court jurisdiction, Article III, Section 2, Clause 1, of the Constitution
provides that the federal judicial power “shall extend” to the following categories of cases and
controversies:
•
•
•
•
•
•
•
•
•
Cases arising under the Constitution, federal law, or treaties;
Cases affecting ambassadors, other public ministers, and consuls;
Admiralty and maritime law cases;
Controversies to which the United States is a party;
Controversies between two or more states;
Controversies between a state and citizens of another state;
Controversies between citizens of different states;
Controversies between citizens of the same state claiming lands under grants of
different states; and
Controversies between a state or its citizens and a foreign state or its citizens or
subjects.158
Among those categories, the two that generate the most federal court litigation are the grant of
jurisdiction over cases arising under the Constitution, federal law, or treaties—sometimes called
153 Personal jurisdiction may be waived, meaning that court that would not otherwise have personal jurisdiction over a
party may nonetheless hear a case involving that party if the party consents to jurisdiction or fails to object. Subject
matter jurisdiction may not be waived. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 701-03 (1982).
154 See, e.g., U.S. CONST. art. III, § 2, cl. 2; 28 U.S.C. §§ 1331, 1332. See also Cong. Rsch. Serv., Overview of Cases or
Controversies, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C11/ALDE_00013375/ (last visited July 18, 2023); Cong. Rsch. Serv., Overview of Federal Question Jurisdiction,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C1-11-1/ALDE_00013326 (last
visited July 18, 2023); Cong. Rsch. Serv., Overview of Diversity Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-16-1/ALDE_00013239 (last visited July 18, 2023).
155 See, e.g., Cong. Rsch. Serv., Overview of Personal Jurisdiction and Due Process, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-7-1-1/ALDE_00000907/ (last visited July 18, 2023).
156 See Cong. Rsch. Serv., Overview of Cases or Controversies, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-1/ALDE_00013375/ (last visited July 18, 2023).
157 See Jurisdiction, Black’s Law Dictionary (11th ed. 2019).
158 U.S. CONST. art. III, § 2, cl. 1.
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federal question jurisdiction or arising under jurisdiction—and the grant of jurisdiction over
disputes between citizens of different states—also known as diversity jurisdiction.159 In the first
of these categories, federal courts generally decide matters of federal law. By contrast, when
federal courts exercise diversity jurisdiction, they may decide questions of state law when those
questions arise in suits between citizens of different states.
Article III, Section 2, Clause 2, grants the U.S. Supreme Court original jurisdiction over two
categories of cases: cases affecting ambassadors, other public ministers, and consuls and cases in
which a state is a party to the controversy.160 Original jurisdiction means that parties may
commence these types of cases directly in the Supreme Court.161 The Supreme Court has held that
its original jurisdiction flows directly from the Constitution, so Congress cannot limit or expand
its scope.162 However, the constitutional grant of Supreme Court original jurisdiction is not
exclusive.163 Parties can commence suits subject to Supreme Court original jurisdiction in state
court or in inferior federal courts.164 Supreme Court cases invoking the Court’s original
jurisdiction are relatively rare.165
Other types of cases can reach the Supreme Court, if at all, on appeal from a decision of a lower
federal court or a state court.166 Article III provides that the Supreme Court shall have appellate
jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make.”167
Congress cannot grant the federal courts jurisdiction over cases that fall outside the list in Article
III, Section 2, Clause 1, and, as noted, cannot alter the Supreme Court’s original jurisdiction.
Otherwise, however, Congress can decide whether, and to what extent, to grant the federal courts
jurisdiction over the enumerated categories of cases. This gives Congress substantial control over
the subject matter jurisdiction of the federal courts.168 As a result, federal court jurisdiction is
largely defined by federal statutes rather than the text of Article III.
In most cases where federal courts can exercise subject matter jurisdiction, state courts possess
concurrent jurisdiction to hear cases that could also proceed in federal court. Thus, a citizen of
one state suing a citizen of another state and seeking more than $75,000 in damages may elect to
file suit in either federal or state court. Similarly, a person bringing a civil claim under a federal
159 See generally Cong. Rsch. Serv., Overview of Federal Question Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-11-1/ALDE_00013326 (last visited July 18, 2023); Cong.
Rsch. Serv., Overview of Diversity Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-16-1/ALDE_00013239 (last visited July 18, 2023).
160 U.S. CONST. art. III, § 2, cl. 2; see also Cong. Rsch. Serv., Supreme Court Original Jurisdiction, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-2/ALDE_00001220/ (last visited July 18,
2023).
161 See Jurisdiction, Black’s Law Dictionary (11th ed. 2019).
162 Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861).
163 Cf. 28 U.S.C § 1251 (statute providing for “original and exclusive” Supreme Court jurisdiction over controversies
between two or more states and “original but not exclusive” Supreme Court jurisdiction over certain other matters).
164 See, e.g., Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884).
165 To illustrate, of the sixty-six merits cases the Court considered during its October 2021 Term, only one invoked the
Court’s original jurisdiction. See Angie Gou, Ellena Erskine, & James Romoser, STAT PACK for the Supreme Court’s
2021-22 Term 24, SCOTUSBLOG (July 1, 2022) https://www.scotusblog.com/wpcontent/uploads/2022/07/SCOTUSblog-Final-STAT-PACK-OT2021.pdf.
166 U.S. CONST. art. III, § 2, cl. 2.
167 U.S. CONST. art. III, § 2, cl. 2.
168 See generally CRS Report R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein,
coordinated by Kevin M. Lewis. Congressional offices with questions about Congress’s power to limit federal court
jurisdiction may contact Joanna Lampe.
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statute may often file in either federal or state court. For instance, some plaintiffs bringing federal
civil rights claims under 42 U.S.C. § 1983 elect to sue in state court, sometimes along with
related claims under state civil rights laws.169 The plaintiff’s choice of forum is not always the last
word on the matter: As discussed further below, there are circumstances in which cases can move
between state and federal court.170
In some categories of cases, Congress has provided for exclusive jurisdiction, meaning that such
cases can be brought only in federal court, not in state court. For instance, the federal courts have
exclusive jurisdiction over federal criminal cases and cases arising under federal bankruptcy,
antitrust, or copyright law.171
Cases that do not fall within the bounds of federal court subject matter jurisdiction as established
by the Constitution and federal statutes must proceed in state court, if at all. State courts thus have
jurisdiction over many issues that have traditionally been matters of state law, including property
ownership and transfer; business organizations and professional licensing; marriage, divorce, and
adoption; and many aspects of criminal law. There are federal laws that regulate particular aspects
of each of these areas that could raise questions for the federal courts, and the Supreme Court
may also hear appeals based on the Constitution or federal law.172 Claims arising under state law
between parties from the same state must also generally proceed in state court. In the aggregate,
state courts hear significantly more cases than the federal courts do.173 One 2014 report stated that
federal courts consider approximately 400,000 cases a year, compared to more than 100 million
cases filed annually in state courts.174
Personal Jurisdiction
In addition to subject matter jurisdiction, any federal or state court hearing a case must have
personal jurisdiction over the parties. The Due Process Clause of the Fourteenth Amendment
limits when state courts may exercise personal jurisdiction. These limits protect parties from
having to defend against litigation in forums to which they have no connection and protect the
sovereignty of each state from other states.175 The Supreme Court has held that a state court may
exercise personal jurisdiction over a defendant if the defendant has “certain minimum contacts
with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair
play and substantial justice.’”176 Under the Federal Rules of Civil Procedure, federal courts
169 See, e.g., Martin A. Schwartz, Section 1983 Litigation – Supreme Court Developments, 15 TOURO L. REV. 859, 860-
61 (1999).
170 See infra “Moving Between State and Federal Court.”
171 See 18 U.S.C. § 3231 (federal criminal proceedings); 28 U.S.C. § 1334 (bankruptcy cases); id. § 1337 (antitrust
cases); id. § 1337 (patent and copyright cases).
172 See infra “Federal Court Review of State Court Decisions.”
173 Mathew Manweller, The Roles, Functions, and Powers of State Courts, in THE JUDICIAL BRANCH OF STATE
GOVERNMENT: PEOPLE, PROCESS, AND POLITICS 37–96 (Sean O. Hogan, ed.) (2006).
174 Univ. of Denver, Institute for the Advancement of the American Legal System, FAQs: Judges in the United States,
https://iaals.du.edu/sites/default/files/documents/publications/judge_faq.pdf. State judicial systems are also larger than
the federal system, in the aggregate. The same report estimates that there are about 30,000 state judges and 1,700
federal judges. Id.
175 See, e.g., Cong. Rsch. Serv., Overview of Personal Jurisdiction and Due Process, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-7-1-1/ALDE_00000907/ (last visited July 18, 2023); BristolMeyers Squibb v. Superior Court of Ca. 137 S. Ct. 1773, 1780-81 (2017).
176 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
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ordinarily apply the law of the states in which they sit to determine the scope of their personal
jurisdiction.177
In general, the doctrine of personal jurisdiction does not determine whether a case must proceed
in federal or state court. Instead, it determines the location(s) where a case can proceed within
each system. Multiple state and federal courts may possess personal jurisdiction over a single
person involved in a legal case or controversy. To illustrate, imagine that a citizen of Delaware
travels to Alabama and causes a car accident there. A citizen of Pennsylvania injured in the
accident sues the citizen of Delaware. State courts in Delaware would have personal jurisdiction
over the defendant because she lives in the state. State courts in Alabama would also have
personal jurisdiction because the defendant’s conduct giving rise to the claim occurred in
Alabama.178 Federal district courts in Delaware and Alabama would also have personal
jurisdiction over the defendant (and could potentially exercise subject matter jurisdiction based on
diversity, depending on the amount in controversy).179 However, Pennsylvania state courts or a
federal district court in Pennsylvania would likely not have personal jurisdiction over the
defendant because she lacks sufficient connection with the state.180
Venue and Other Considerations
When multiple courts have jurisdiction over a case, other legal doctrines may help determine the
most appropriate forum. For instance, rules governing venue may guide the selection between
different federal courts.181 Venue rules are not constitutional limitations but rather are imposed by
statute to protect a defendant against having to litigate in a forum that is arbitrary or
inconvenient.182 In some circumstances, a court that has the authority to exercise jurisdiction over
a case may nonetheless decline to do so. For instance, in a case presenting both federal and state
law claims, a federal court may decline to hear the case if it raises a novel or complex issue of
state law or if state law claims predominate.183
Choice of Law: Applying Federal or State Law
The forum in which litigation proceeds does not dictate the substantive law that governs the
claims brought before a court. In particular, it is not always the case that federal courts apply
federal law and state courts apply state law. A comprehensive review of the choice of law
principles that determine what laws apply to different cases is outside the scope of this report.
However, the following sections outline selected circumstances in which state courts may apply
federal law or federal courts may apply state law.
177 See Daimler AG v. Bauman, 571 U.S. 117, 125 (2014); Fed. R. Civ. P. 4(k)(1)(A). The Supreme Court has
generally declined to resolve questions about the extent to which the Fifth Amendment may place constitutional
limitations on the personal jurisdiction of the federal courts. See Bristol-Myers Squibb Co. v. Superior Court, 582 U.S.
255, 268 (2017); Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987); Asahi Metal Indus. Co.
v. Superior Court, 480 U.S. 102, 116 n. (1987).
178 Cf. Hess v. Pawloski, 274 U.S. 352 (1927) (Massachusetts court could exercise jurisdiction over a non-resident who
caused an accident while driving negligently within the state.).
179 See Fed. R. Civ. P. 4(k)(1)(A).
180 See, e.g., Cong. Rsch. Serv., Modern Doctrine on Personal Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-7-1-3/ALDE_00013034/ (last visited July 18, 2023).
181 See, e.g., 28 U.S.C. § 1391.
182 4 Charles Alan Wright et al., Federal Practice and Procedure § 1063 (4th ed. 2023).
183 See 28 U.S.C. § 1367.
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Unless otherwise noted, the discussion in this section relates to civil litigation. Federal courts
possess exclusive jurisdiction over federal criminal cases, so federal criminal prosecutions must
proceed in federal court.184 State law criminal prosecutions also almost always proceed in state
court subject to the limited exceptions discussed below.
State Courts Applying Federal Law
State courts are authorized to apply federal law in many types of cases and are required to apply
federal law when it governs a dispute. While state courts may interpret and apply federal law, the
Supreme Court is the final authority on the meaning of federal law. Decisions of the Supreme
Court interpreting the Constitution and federal laws and treaties are binding on state courts as
well as on the lower federal courts.185
As part of their general jurisdiction, state courts have concurrent jurisdiction to hear most cases
that raise issues under the Constitution or federal law.186 As noted above, Congress may enact
legislation providing that certain claims arising under federal law may be heard only in federal
court.187 However, unless Congress expressly or implicitly provides for exclusive federal court
jurisdiction, a case raising federal law claims may proceed in either state or federal court.188 The
role of state courts in applying federal law dates back to the Founding. Some of the Framers
opposed establishing federal courts other than the Supreme Court, arguing that state courts could
bear almost exclusive responsibility for enforcing federal law subject to appellate review by the
Supreme Court.189
While the Framers ultimately authorized the creation of lower federal courts, the Constitution’s
Supremacy Clause nonetheless contemplates that state courts will apply federal law, providing
that “the Judges in every State shall be bound” by the Constitution and federal statutes and
treaties, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”190
Therefore, when federal and state law conflict, state courts must apply federal law.191 To illustrate,
a criminal defendant may defend against state law charges in state court by arguing that the
applicable state statute violates the U.S. Constitution.192 State courts must consider such federal-
184 See 18 U.S.C. § 3231 (granting the federal district courts “original jurisdiction, exclusive of the courts of the States,”
over federal criminal proceedings).
185 See generally Cong. Rsch. Serv., Overview of Supremacy Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00013395/ (last visited July 18, 2023).
185 See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).
186 E.g., Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962) (“We start with the premise that nothing in the
concept of our federal system prevents state courts from enforcing rights created by federal law.”).
187 See, e.g., 18 U.S.C. § 3231 (granting the federal district courts exclusive jurisdiction over federal criminal
proceedings); 28 U.S.C. § 1334 (granting district courts jurisdiction over bankruptcy cases); id. § 1337 (granting
district courts jurisdiction over antitrust cases).
188 E.g., Claflin v. Houseman. 93 US 130, 136 (1876) (“[I]f exclusive jurisdiction be neither express nor implied, the
State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it.”).
189 See generally Cong. Rsch. Serv., Historical Background on Relationship Between Federal and State Courts,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-6-2/ALDE_00013230/ (last
visited July 18, 2023).
190 U.S. CONST. art. VI, cl. 2.
191 See generally Cong. Rsch. Serv., Overview of Supremacy Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00013395/ (last visited July 18, 2023).
192 See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).
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law defenses, and the Supreme Court may review state court decisions on matters of federal
law.193
In addition to considering federal law defenses, there are other times when state courts are
required to hear claims arising under federal law. The Supreme Court has ruled that state courts
must generally hear federal law claims unless state law bars a state court from hearing a federal
claim through a “neutral rule of judicial administration” that does not improperly burden claims
arising under federal law.194 In several cases, however, the Supreme Court has upheld state courts’
refusal to hear certain federal claims, finding that state law provided a “valid excuse” to decline
jurisdiction.195 For example, the Court has held that state courts may decline to exercise
jurisdiction over federal claims pursuant to “a neutral state Rule regarding the administration of
the state courts” that does not disproportionately burden federal claims.196
Federal Courts Applying State Law
There are several circumstances in which federal courts apply state law. Perhaps the most
prominent example is when federal courts hear diversity cases involving state law claims between
parties from different states. Under Supreme Court precedent, federal courts hearing diversity
cases apply state substantive law.197
Federal courts may also apply state law when exercising supplemental jurisdiction over state law
claims.198 Supplemental jurisdiction exists when a claim that would not otherwise be subject to
federal court jurisdiction (usually a state law claim) arises from the same set of facts as a claim
that is subject to federal court jurisdiction.199 In these cases, a federal court applies federal law to
the federal claims and state law to the state law claims. The federal court may, however, decline
to exercise supplemental jurisdiction over a state law claim in some circumstances, including if it
raises a novel or complex issue of state law or state law claims predominate over the federal
claims.200
A less common instance in which federal courts apply state law involves cases removed to federal
court under the federal officer removal statute. That statute allows for removal from state to
federal court of cases including any civil action or criminal prosecution against the United States
or any federal officer or agency “in an official or individual capacity, for or relating to any act
under color of such office or on account of any right, title or authority claimed under any Act of
193 See Cong. Rsch. Serv., Modern Doctrine on Supremacy Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artVI-C2-3-4/ALDE_00013402/ (last visited July 18, 2023); Cong.
Rsch. Serv., Supreme Court Review of State Court Decisions, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C2-5/ALDE_00001223/ (last visited July 18, 2023).
194 Howlett v. Rose, 496 U.S. 356, 374 (1990); see generally Cong. Rsch. Serv., State Court Jurisdiction to Enforce
Federal Law, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-64/ALDE_00013232/ (last visited July 18, 2023).
195 Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 388 (1929); see also Herb v. Pitcairn, 324 U.S. 117 (1945);
Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1 (1950).
196 Johnson v. Fankell, 520 U.S. 911, 918 (1997).
197 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); cf. Hanna v. Plumer, 380 U.S. 460(1965) (holding that if federal
and state procedural law conflict, federal procedural law applies).
198 See generally Cong. Rsch. Serv., Supplemental Jurisdiction, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-11-6/ALDE_00013331 (last visited July 18, 2023).
Supplemental jurisdiction may also be called ancillary jurisdiction, pendent jurisdiction, or pendent claim jurisdiction.
199 28 U.S.C. § 1367; see also, e.g., Romero v. International Terminal Operating Co., 358 U.S. 354, 380–81 (1959);
Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963); Rosado v. Wyman, 397 U.S. 397, 402–05 (1970).
200 28 U.S.C. § 1367.
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Congress for the apprehension or punishment of criminals or the collection of the revenue.”201
Once a case is removed to federal court under this statute, state substantive law applies to the
underlying claims or criminal charges,202 but the officer must raise one or more defenses under
federal law (for example, that federal sovereign immunity bars the suit) for the federal courts to
have jurisdiction.203
Just as federal courts possess the ultimate authority to interpret federal law, each state’s courts
possess the ultimate authority to interpret the state’s own laws and constitution. If a state’s highest
court has interpreted a state statute or a provision of the state constitution, federal courts—
including the Supreme Court—must accept that interpretation regardless of whether they agree
with it.204 In addition, as discussed further below, when a case pending in federal court presents a
novel question of state law that may affect the outcome of the case, the federal court may certify
the question to the state’s highest court, asking the state court to resolve the state law question so
that the federal court can then correctly adjudicate the case in light of the applicable state law.205
Federal Court Review of State Court Decisions
In some circumstances, federal courts may review decisions of state courts. The U.S. Supreme
Court has jurisdiction to review a decision of “the highest court of a State” if (1) the decision
draws into question the validity of a treaty or statute of the United States; (2) a state statute
allegedly conflicts with the U.S. Constitution or a federal law or treaty; or (3) a party claims “any
title, right, privilege, or immunity” under the Constitution, a federal treaty or statute, or any
federal commission or other federal authority.206
The Supreme Court has imposed some limits on its review of state court decisions. First, the
Court has held that it may review only final state court judgments, meaning that the party seeking
review must generally pursue all available appeals within the state court system.207 Second, the
Court requires that a party seeking to litigate a federal constitutional issue on appeal from a state
court judgment must have raised the issue in state court at an appropriate time and with sufficient
precision to allow the state court to consider it.208 Third, when the judgment of a state court rests
on an adequate, independent ground based on state law (that is, if the case can be disposed of on
state law grounds and the outcome would be the same regardless of how any federal question is
201 Id. § 1442.
202 See, e.g., Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (explaining the removal serves in part to “permit[ ] a
trial upon the merits of the state-law question free from local interests or prejudice”).
203 See Mesa v. California 489 U.S. 121, 129 (1989).
204 Hortonville Joint Sch. Dist. No. I v. Hortonville Educ. Ass'n, 426 U.S. 482, 488 (1976). If a state law, as construed
by the state’s highest court, conflicts with federal law or the U.S. Constitution, a federal court may strike down the state
law. See Cong. Rsch. Serv., Overview of Supremacy Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00013395/ (last visited July 18, 2023).
205 See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997); see also infra “Moving Between State
and Federal Court.”
206 28 U.S.C. § 1257; see generally Cong. Rsch. Serv., Supreme Court Review of State Court Decisions, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C2-5/ALDE_00001223/ (last visited July 18,
2023).
207 See, e.g., Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 551 (1945). The Court has developed a series of
exceptions permitting review when the federal issue in the case has been finally determined but there are still
proceedings to come in the lower state courts. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476–487 (1975).
208 New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928); see also Bankers Life & Casualty Co. v.
Crenshaw, 486 U.S. 71, 77 (1988); Webb v. Webb, 451 U.S. 493, 501 (1981).
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decided), the Court has indicated it will not review any federal question presented even if the
state court decided the federal question incorrectly.209
Supreme Court review of state court decisions is by a petition for a writ of certiorari, meaning
that even if the foregoing requirements are satisfied, the Supreme Court may choose whether or
not to hear such cases. Nonetheless, numerous high-profile Supreme Court cases have arrived at
the Court on appeal from state courts.210
In addition to Supreme Court appellate review of state court decisions, federal courts may review
the detention of a person in state custody. Prisoners in state custody may petition in federal court
for a writ of habeas corpus alleging that they are “in custody in violation of the Constitution or
laws or treaties of the United States.”211 Therefore, a habeas petition generally does not seek
review of the state criminal law basis for a conviction, but it may (for example) claim that the
trial procedure in state court violated the prisoner’s federal constitutional rights. Before filing a
habeas petition in federal court, a person in state custody must first exhaust available state court
remedies.212 The Antiterrorism and Effective Death Penalty Act of 1996 imposed additional limits
on habeas petitions challenging state custody.213
Moving Between State and Federal Court
Sometimes, cases may move between the state and federal judicial systems. One example of this
is Supreme Court review of state court decisions, discussed in the preceding section.214
Another prominent example is removal of cases from state court to federal court. When filing a
civil suit, the plaintiff can often choose whether to proceed in state or federal court. If the plaintiff
elects to file in state court, the defendant may in some circumstances remove the case to federal
court and proceed there instead. A general federal removal statute allows for removal of any civil
action brought in a state court that could have been filed originally in federal court.215 Additional
statutes authorize removal in specific circumstances.216 While the general removal statute applies
only to civil cases, other statutory provisions allow for removal of limited classes of civil or
criminal proceedings against federal officers or agencies or members of the Armed Forces.217
If a case is properly removed to federal court, it will generally proceed in federal court even if the
plaintiff prefers a state forum. However, if removal is improper—for example, because the federal
courts lack jurisdiction over a case or the defendant missed the removal deadline—the federal
209 Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); Black v. Cutter Laboratories, 351 U.S. 292 (1956);
Wilson v. Loew’s, Inc., 355 U.S. 597 (1958).
210 See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).
211 28 U.S.C. § 2254.
212 E.g., Coleman v. Thompson, 501 U.S. 722, 750 (1991).
213 Pub. L. No. 104-132, Title I, 110 Stat. 1217–21, amending 28 U.S.C. §§ 2244, 2253, 2254, and Rule 22 of the
Federal Rules of Appellate Procedure.
214 See supra “Federal Court Review of State Court Decisions.” Federal habeas review of state detention is not an
example of cases moving between the state and federal systems, because a habeas petition initiates a new proceeding.
215 28 U.S.C. § 1441.
216 See 28 U.S.C. §§ 1442 (suits or prosecutions against federal officers and agencies), 1442a (suits or prosecutions
against members of the Armed Forces), 1443 (civil rights cases), 1444 (foreclosure actions against the United States),
1452 (claims related to bankruptcy cases), 1453 (class actions), 1454 (patent, plant variety protection, and copyright
cases).
217 See id. §§ 1442, 1442a.
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court may remand the case to state court.218 The federal court may also sever and remand specific
claims over which it does not have jurisdiction.219
Another way in which litigation may move from federal to state court is through the process of
certification. As discussed above, there are circumstances in which federal courts apply state law,
but each state’s highest court is the ultimate authority on the meaning and application of the
state’s law. If a state supreme court has interpreted a statute, the federal courts are to apply that
interpretation.220 In some cases where there is no state court decision directly on point, a federal
court will attempt to predict how state courts would interpret a state law.221 However, if a federal
court case raises a novel question under state law, the federal court may instead certify the
question to the state’s highest court.222 This procedure allows the state court to provide an
authoritative interpretation of state law. The federal court maintains jurisdiction over the case as a
whole but applies the state court’s interpretation.223
Considerations for Congress
Congress has significant authority to regulate federal courts, including creating federal tribunals,
setting judicial procedures, and deciding which federal courts can hear various types of cases.224
By contrast, Congress has limited authority to regulate state courts directly but may often decide
whether certain types of cases will proceed in federal or state court and also provide federal
funding to incentivize state courts to adopt certain policies.
Directing Cases to Federal or State Court
Congress often has the authority to decide whether certain types of cases can be brought in
federal or state court or both. The main limitation on this power comes from the Constitution’s
limits on federal court jurisdiction: Congress cannot allow the federal courts to hear cases that fall
outside Article III’s grant of judicial power.225 However, because Article III empowers the federal
courts to hear cases “arising under” federal law, if Congress has the power to enact substantive
laws in a given area, it also has the authority to provide that those laws may (or must) be enforced
in federal court.226
218 Id. § 1447. See also, e.g., BP PLC v. Mayor and City of Baltimore, 141 S. Ct. 1532 (2021).
219 28 U.S.C. § 1441(b)(2).
220 Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).
221 See, e.g., Krieser v. Hobbs, 166 F.3d 736, 738 (5th Cir.1999); Conlin v. Mortg. Elec. Registration Sys., Inc., 714
F.3d 355, 358 (6th Cir. 2013).
222 See, e.g., Mckesson v. Doe, 141 S. Ct. 48 (2020). State law must authorize certification. Most states have enacted
laws to do so. See Arizonans for Official English v. Arizona, 520 U.S. 43, 76 (1997).
223 See id. at 75–76 (explaining how certification limits “friction” between federal and state courts and avoids the delay
of requiring a separate proceeding in state court).
224 See generally Cong. Rsch. Serv., Overview of Establishment of Article III Courts, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-8-1/ALDE_00013557 (last visited July 18, 2023); Cong. Rsch.
Serv., Overview of Congressional Power to Establish Non-Article III Courts, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-9-1/ALDE_00013604 (last visited July 18, 2023); CRS Report
R47382, Congressional Control over the Supreme Court, by Joanna R. Lampe.
225 See generally Cong. Rsch. Serv., Overview of Cases or Controversies, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-1/ALDE_00013375/ (last visited July 18, 2023).
226 See generally Cong. Rsch. Serv., Substantive Claims and Defenses in Federal Question Cases, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C1-11-4/ALDE_00013329/ (last visited July 18,
(continued...)
Congressional Research Service
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Federal and State Courts: Structure and Interaction
When Congress enacts a new law that includes a private right of action—the ability of private
persons to sue to enforce the law—it may decide whether to specify where such cases will
proceed. Congress may provide for concurrent jurisdiction and allow federal claims to proceed in
either federal or state court, or it may provide for exclusive federal court jurisdiction. Unless
Congress expressly or implicitly provides for exclusive federal court jurisdiction, the presumption
is that a statute creates concurrent jurisdiction.227
In cases proceeding in federal court, Congress has substantial discretion to decide which federal
court(s) can hear a case.228 Congress has generally provided that cases should be brought where
the parties are located or where the conduct giving rise to the case occurred.229 However,
Congress sometimes chooses to route certain types of cases to specific courts. This routing may
take the form of directing certain matters to a particular judicial district or circuit court,230 or
Congress may send some cases to specialized tribunals.231 Commentators and policymakers have
at times proposed creating additional specialized federal tribunals, such as an appellate tax court
that would hear appeals from the U.S. Tax Court.232
When Congress chooses to create a new specialized federal court, it must decide whether to
establish the tribunal as an Article III court—which is subject to Article III’s requirements related
to life tenure, salary protection, and appointment of judges—or as an Article I court. The
Constitution limits the matters that Article I courts can decide independently, so certain matters
would need to proceed before an Article III court.233 When Congress chooses to create an Article I
tribunal, it may decide how judges on the tribunal should be selected, how long they should
remain in office, whether they should be subject to other qualifications such as residency
requirements, and whether and in what circumstances they could be removed from office during
their terms.
Funding for State and Federal Courts
Congress uses its power under the Spending Clause to fund federal courts and can also provide
federal funds to state courts.234 State courts are primarily funded by the states, but Congress
occasionally makes federal funding available to state judiciaries and can use such funding to
promote certain policies.
2023). Other legal authorities, such as Article III’s standing requirement, may limit Congress’s ability to create causes
of action in the federal courts. See, e.g., Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“It is settled that Congress
cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not
otherwise have standing.”).
227 E.g., Claflin v. Houseman, 93 US 130, 136 (1876) (“[I]f exclusive jurisdiction be neither express nor implied, the
State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it.”).
228 See generally CRS Legal Sidebar LSB10856, Where a Suit Can Proceed: Court Selection and Forum Shopping, by
Joanna R. Lampe.
229 See 28 U.S.C. § 1391.
230 See, e.g., 42 U.S.C. § 7607 (provision of the Clean Air Act requiring that challenges to certain administrative actions
under the Act proceed in the D.C. Circuit).
231 See, e.g., 28 U.S.C. § 1295(a) (granting the Federal Circuit jurisdiction over appeals in cases arising under “any Act
of Congress relating to patents or plant variety protection”).
232 See, e.g., Erwin N. Griswold, The Need for a Court of Tax Appeals, 57 HARV. L. REV. 1153 (1994); see generally 13
FED. PRAC. & PROC. JURIS. § 3508 n.59 (3d ed.) (collecting proposals for specialized courts).
233 See “Constitutional Limitations on Non-Article III Courts” section of CRS Report R43746, Congressional Power to
Create Federal Courts: A Legal Overview, by Andrew Nolan and Richard M. Thompson II. Congressional offices with
questions about Congress’s power to create federal courts may contact Joanna Lampe.
234 See CRS In Focus IF12353, Judiciary Budget Request, FY2024, by Barry J. McMillion.
Congressional Research Service
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Federal and State Courts: Structure and Interaction
As discussed above, state courts are creatures of state law and are established under state
constitutions and statutes, subject to certain federal constitutional limits. Congress has little power
to regulate state courts directly, but in some circumstances it can influence state courts (as it can
other institutions and entities of state government) indirectly by making federal funding available.
Congress has broad constitutional authority to tax and spend for the public welfare, though the
Constitution imposes some limits on Congress’s ability to place conditions on federal grants to
states and municipalities.235 Recently, for example, Congress has appropriated funds for initiatives
intended to increase court efficiency, expand access to legal representation, develop state courts’
technological capabilities, and more.236 As one specific example, during the COVID-19
pandemic, Congress provided funding for both federal and state courts to conduct remote
proceedings by telephone or videoconferencing.237
235 See generally CRS Report R46827, Funding Conditions: Constitutional Limits on Congress’s Spending Power, by
Victoria L. Killion.
236 See, e.g., American University, The Justice in Government Project, Grants Matrix: State-Administered Federal
Funds that Can Support Court Access to Justice and Technology Innovations (July 15, 2021),
https://www.ncsc.org/__data/assets/pdf_file/0022/28507/Grants-matrix.pdf.
237 See National Center for State Courts, CARES Act Funds Support Digital Access to Courts During the COVID-19
Pandemic (Nov. 29, 2020), https://www.ncsc.org/__data/assets/pdf_file/0020/72551/cares-act-case-study-11-29-202.pdf.
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Federal and State Courts: Structure and Interaction
Appendix. Selection and Retention of State High
Court Judges
The following tables include information on the selection and retention of judges on each state’s
highest court. Table A-1 outlines how state high court judges are selected and whether they are
subject to retention elections or reappointment requirements. Table A-2 summarizes applicable
term or age limits for state high court judges. Selection and retention procedures and term lengths
may differ for judges on lower state courts.
Table A-1. Survey of Selection Methods and Retention Requirements for State High
Court Judges
Selection Method
Citation
Retention
Requirements
Citation
Alabama
Partisan elections to
serve six-year terms
Ala. Const. art. VI,
§§ 152, 154; Ala.
Code § 12-2-1
Re-election to serve
additional six-year
terms
No noted limit on
reelection
Alaska
Appointment by the
governor from a list
provided by a
judicial council for
an initial three-year
term
Alaska Const. art.
IV, § 5; ALASKA
STAT. § 22.05.080
Retention elections
for additional tenyear terms
Alaska Const. art.
IV, § 6
Arizona
Appointment by the
governor from a list
provided by a
judicial nominating
commission for an
initial two-year term
Ariz. Const. art. VI,
§§ 36, 37
Retention elections
for additional sixyear terms
Ariz. Const. art. VI,
§§ 4, 38
Arkansas
Nonpartisan
elections to serve
eight-year terms
Ark. Const. amend.
80, §§ 16(A), 18(A)
Re-election to serve
additional eight-year
terms
No noted limit on
reelection
California
Appointment by the
governor and
confirmation by a
commission on
judicial
appointments for a
term of twelve
years or, if
appointed mid-term,
until the first
general election
after appointment
Cal. Const. art. VI,
§§ 16(a), (d)(2)
Retention elections
to serve additional
twelve-year terms
Cal. Const. art. VI,
§ 16(d)(1)
Colorado
Nomination by
judicial nominating
commission and
appointment by the
governor for a
provisional term of
two years
Colo. Const. art. VI,
§§ 20, 24
Re-election to serve
additional ten-year
terms
Colo. Const. art. VI,
§§ 7, 25
State
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State
Selection Method
Citation
Retention
Requirements
Citation
Conn. Const. art. V,
§2
Judicial selection
committee reviews
justices who wish to
be retained and
recommends to the
governor whether
they should be
reappointed
CONN. GEN. STAT.
§ 51-44a(e)
Del. Const. art. IV,
§3
Connecticut
Appointment by the
governor from a list
provided by a
judicial selection
committee for a
term of eight years
Delaware
Appointment by the
governor with the
consent of the state
senate for a term of
twelve years
Del. Const. art. IV,
§3
Incumbents may be
reappointed to
serve additional
terms
Florida
Appointment by the
governor from a list
provided by a
judicial nominating
commission for a
term of six years
Fla. Const. art. V,
§ 11(a)
Retention elections
for additional sixyear terms
Fla. Const. art. V,
§ 10
Georgia
Nonpartisan
elections to serve
six-year terms
Ga. Const. art. VI,
§ VII, para. I
Re-election to serve
additional six-year
terms
No noted limit on
reelection
Hawaii
Appointment by the
governor from a list
provided by a
judicial nominating
commission for a
term of ten years
Haw. Const. art. VI,
§3
Judge may petition
the judicial selection
commission and the
commission may
renew the term of
office
Haw. Const. art. VI,
§3
Idaho
Nonpartisan
elections to serve
six-year terms
Idaho Const. art. V,
§§ 6, 7
Re-election to serve
additional six-year
terms
No noted limit on
reelection
Illinois
Partisan elections to
serve ten-year
terms
Ill. Const. art. VI,
§§ 10, 12
Nonpartisan
retention elections
for additional tenyear terms
Ill. Const. art. VI,
§ 12(d)
Indiana
Appointment by
judicial nominating
committee for an
initial two-year term
Ind. Const. art. 7,
§§ 9, 11
Retention elections
for additional tenyear terms
Ind. Const. art. 7,
§ 11
Iowa
Appointment by a
judicial nominating
committee for an
initial one-year term
Iowa Const. art. V,
§§ 16, 17
Retention elections
for additional eightyear terms
Iowa Const. art. V,
§§ 17
Kansas
Appointment by
governor from
recommendations
by a nominating
commission for an
initial one-year term
Kan. Const. art. 3,
§ 5(a)
Nonpartisan
retention elections
for additional sixyear terms
Kan. Const. art. 3,
§ 5(c)
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Selection Method
Citation
Retention
Requirements
Citation
Kentucky
Nonpartisan
elections to serve
eight-year terms
Ky. Const. §§ 117,
119
Re-election to serve
additional six-year
terms
No noted limit on
reelection
Louisiana
Partisan elections to
serve ten-year
terms
La. Const. art. V,
§§ 3, 22
Re-election to serve
additional ten-year
terms
No noted limit on
reelection
Maine
Appointment by
governor to serve
seven-year terms
Me. Const. art. VI,
§4
Reappointment by
the governor to
serve additional
seven-year terms
Me. Const. art. VI,
§4
Maryland
Appointment by
governor, by and
with advice and
consent of the state
senate, for an initial
one-year term
Md. Const. art. IV,
§§ 5A(b), (c)
Retention elections
for additional tenyear terms
Md. Const. art. IV,
§ 5A(c)
Massachusetts
Appointment by
governor for term
of life during good
behavior
Mass. Const. pt. 2,
ch. II, § I, art. IX; pt.
2, ch. III, art. I
Serve during good
behavior
Mass. Const. pt. 2,
ch. III, art. I
Michigan
Nonpartisan
election to serve
eight-year terms
Mich. Const. art. VI,
§2
Nonpartisan
retention elections
for additional eightyear terms
Mich. Const. art. VI,
§2
Minnesota
Nonpartisan
elections to serve
six-year terms
Minn. Const. art. VI,
§§ 7-8; MINN. STAT.
ANN. § 204B.36
(subdiv. 4)
Re-election to serve
additional six-year
terms
No noted limit on
reelection
Mississippi
Nonpartisan
elections to serve
eight-year terms
Miss. Const. Ann.
art. 6, §§ 145, 149
Re-election to serve
additional eight-year
terms
No noted limit on
reelection
Missouri
Appointment by
governor from a list
provided by a
nonpartisan judicial
commission for
initial one-year term
Mo. Const. art. V,
§§ 25(a), (c)(1)
Nonpartisan
retention elections
for additional
twelve-year terms
Mo. Const. art. V,
§ 19, 25(c)(1)
Montana
Non-partisan
elections to serve
eight-year terms
Mont. Const. art.
VII §§ 7(2), 8;
MONT. CODE ANN. §
13-14-111
Re-election to serve
additional eight-year
terms
No noted limit on
reelection
Nebraska
Appointment by the
governor from a list
provided by a
judicial nominating
commission for an
initial three-year
term
Neb. Const. art. V,
§ 21
Retention elections
for additional sixyear terms
Neb. Const. art. V,
§ 21(3)
Nevada
Nonpartisan
elections to serve
six-year terms
Nev. Const. art. 6,
§3
Re-election to serve
additional six-year
terms
No noted limit on
reelection
State
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Federal and State Courts: Structure and Interaction
Selection Method
Citation
Retention
Requirements
Citation
New Hampshire
Appointment by the
governor and an
executive council
for term of life
during good
behavior
N.H. Const. pt. 2,
Arts. 46, 73
Serve during good
behavior
N.H. Const. pt. 2
art. 73
New Jersey
Appointment by the
governor with
advice and consent
of the state senate
for an initial sevenyear term
N.J. Const. art. VI,
§ VI, para. 1
Reappointment by
the governor to
serve for life during
good behavior
N.J. Const. art. VI,
§ VI, para. 3
N.M. Const. art. VI,
§§ 33(1)-(2)
Nonpartisan
retention elections
in which judges
must receive 57% of
the vote to be
retained for
additional eight-year
terms
N.M. Const. art. VI,
§§ 33(1)-(2)
N.Y. Const. art. VI,
§2
State
New Mexico
Partisan elections to
serve eight-year
term
New York
Appointment by the
governor with the
advice and consent
of the state senate
from a list provided
by a judicial
nominating
commission to
serve fourteen-year
terms
N.Y. Const. art. VI,
§2
Reappointment by
the governor to
serve additional
fourteen-year terms
North Carolina
Partisan elections to
serve eight-year
terms
N.C. Const. art. IV,
§ 16; N.C. GEN.
STAT. § 163-106.2
Re-election to serve
additional eight-year
terms
No noted limit on
reelectiona
North Dakota
Nonpartisan
elections to serve
ten-year terms
N.D. Const. art. VI,
§ 7; N.D. CENT.
CODE § 16.1-11-08
Re-election to serve
additional ten-year
terms
No noted limit on
reelection
Ohio
Partisan elections to
serve six-year terms
Ohio Const. art. IV,
§ 6(A)(1); OHIO REV.
CODE ANN.
§ 3505.03
Re-election to serve
additional six-year
terms
Ohio Const. art. IV,
§6
Oklahoma
Appointment by the
governor from a list
provided by a
judicial nominating
commission for an
initial one-year term
Okl. Const. art. 7B,
§§ 4-5
Retention elections
to serve additional
six-year terms
Okl. Const. art. 7B,
§§ 2, 5
Oregon
Nonpartisan
elections to serve
six-year terms
Or. Const. art. VII
(amended), § 1; OR.
REV. STAT. ANN.
§ 249.002(7)
Re-election to serve
additional six-year
terms
Or. Const. art. VII
(amended), § 1; OR.
REV. STAT. ANN.
§ 249.002(7)
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Federal and State Courts: Structure and Interaction
State
Selection Method
Pennsylvania
Partisan elections to
serve ten-year
terms
Rhode Island
Appointment by the
governor with the
advice and consent
of the state
legislature from a
list provided by a
judicial nominating
commission
South Carolina
Election by the
general assembly
from a list provided
by a judicial merit
selection
commission for tenyear terms
Citation
Retention
Requirements
Citation
Pa. Const. art. V,
§§ 13(1), 15(a)
Nonpartisan
retention elections
to serve additional
ten-year terms
Pa. Const. art. V,
§ 15(b)
R.I. Const. art. X,
§§ 4, 5
Judges serve for life
during good
behavior
R.I. Const. art. X,
§5
S.C. Const. art. V,
§§ 3, 27
Reapproval by the
general assembly for
additional ten-year
terms
S.C. Const. art. V, §
27
South Dakota
Appointment by the
governor from a list
provided by a
judicial qualifications
commission for an
initial three-year
term
S.D. Const. art. V, §
7
Nonpartisan
retention elections
to serve additional
eight-year terms
S.D. Const. art. V, §
7
Tennessee
Appointment by the
governor and
confirmation by the
general assembly
from a list provided
by a judicial
selection
commission to
serve an eight-year
term or until the
end of the term if
the vacancy being
filled is due to a
mid-term vacancy
or failure to be
retained
Tenn. Const. art. VI,
§ 3; TENN. CODE
ANN. § 17-4-101
Retention elections
to serve additional
eight-year terms
Tenn. Const. art. VI,
§ 3; TENN. CODE
ANN. § 17-4-101
Texas
Partisan elections to
serve six-year terms
Tex. Const. art. V,
§ 2; TEX. ELEC. CODE
§ 172.021
Re-election to serve
additional six-year
terms
No noted limit on
reelection
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State
Selection Method
Citation
Retention
Requirements
Citation
Utah Const. art.
VIII, §§ 8(1), 9
Nonpartisan
retention election
for additional tenyear terms
Utah Const. art.
VIII, § 9
Vt. Const. §§ 32, 34
Re-election by a
vote of the state
general assembly for
additional six-year
terms
Vt. Const. § 34
Va. Const. art. VI,
§7
Re-election by a
vote of the state
general assembly for
additional twelveyear terms
No noted limit on
reelection
Wash. Const. art.
IV, § 3
Utah
Appointment by the
governor with
approval of the
state senate from a
list of at least three
nominees provided
by a judicial
nominating
commission to
serve an initial
three-year term
Vermont
Appointment by the
governor with the
advice and consent
of the state senate
from a list of
nominees provided
by a judicial
nominating body for
an initial six-year
term
Virginia
Chosen by a vote of
the state general
assembly to serve
twelve-year terms
Washington
Nonpartisan
elections to serve
six-year terms
Wash. Const. art.
IV, § 3
Nonpartisan
elections to serve
additional six-year
terms
West Virginia
Nonpartisan
elections to serve
twelve-year terms
W. Va. Const. art.
VIII, § 2; W. VA.
CODE § 3-1-16(b)
Re-election to serve
additional twelveyear terms
W. Va. Const. art.
VIII, § 2
Wyoming
Appointment by the
governor from a list
of 3 nominees
provided by a
judicial nominating
commission to
serve an initial oneyear term
Wyo. Const. art. 5,
§§ 4(b), (g)
Retention elections
to serve additional
eight-year terms
Wyo. Const. art. 5,
§§ 4(f)-(g)
Alabama
Partisan elections to
serve six-year terms
Ala. Const. art. VI,
§§ 152, 154; Ala.
Code § 12-2-1
Re-election to serve
additional six-year
terms
No noted limit on
reelection
Source: Table prepared by the Congressional Research Service.
Notes:
a. The North Carolina Supreme Court declared unconstitutional a 2015 law related to retention elections. See
Faires v. State Board of Elections, 368 N.C. 825 (2016).
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Federal and State Courts: Structure and Interaction
Table A-2. Survey of Age Limits for State High Court Judges
State
Age Limits
Citation
Alabama
Age limit of 70, but a judge who
turns 70 during a term in office may
complete the term
Ala. Const. art. VI, § 155
Alaska
Age limit of 70
ALASKA STAT. § 22.25.010
Arizona
Age limit of 70
Ariz. Const. art. VI, § 39
Arkansas
Must retire by age 70 or lose
retirement benefits, but a judge
elected before age 70 may complete
a term and a judge who is not
eligible to retire at age 70 may
continue to serve until eligible; age
limit does not apply to judges
serving prior to July 1, 1965
ARK. CODE ANN. § 24-8-215
California
No age limit
N/A
Colorado
Age limit of 72
Colo. Const. art. VI, § 23
Connecticut
Age limit of 70
Conn. Const. art. V, § 6
Delaware
No age limit
N/A
Florida
Age limit of 75
Fla. Const. art. V, § 8
Georgia
Age limit of 75, or the end of term
in which a judge turns 70,
whichever is later
GA. CODE ANN. § 47-2-244(C)
Hawaii
Age limit of 70
Haw. Const. art. VI, § 3
Idaho
No age limit
N/A
Illinois
Automatically retired at end of
term in which the judge turns 75
705 ILL. COMP. STAT. ANN. 55/1
Indiana
Age limit of 75
IND. CODE ANN. § 33-38-13-8
Iowa
Age limit of 75
IOWA CODE § 602.1610
Kansas
Must retire at end of term in which
the judge attains the age of 75
KAN. STAT. ANN. § 20-2608(A)
Kentucky
No age limit
N/A
Louisiana
Must retire at end of term in which
the judge attains the age of 70
La. Const. art. V, § 23(B)
Maine
No age limit
N/A
Maryland
Age limit of 70
Md. Const. art. IV, § 3
Massachusetts
Age limit of 70
Mass. Const. pt. 2, ch. III, art. I
Michigan
May not be elected or appointed
after reaching age 70
Mich. Const. art. VI, § 19
Minnesota
Must retire at end of year in which
judge turns 70
MINN. STAT. ANN. §§
490.121(subdiv. 21d), 490.125
Mississippi
No age limit
N/A
Missouri
Age limit of 70
Mo. Const. art. V, § 26
Montana
No age limit
N/A
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State
Age Limits
Citation
Nebraska
No age limit
N/A
Nevada
No age limit, but judges may be
forced to retire due to advanced
age that interferes with the
performance of judicial duties
Nev. Const. art. 6, § 21(8)(b)
New Hampshire
Age limit of 70
N.H. Const. pt. 2, art. 78
New Jersey
Age limit of 70
N.J. Const. art. VI, § VI, para. 3
New Mexico
No age limit
N/A
New York
Must retire at end of the calendar
year in which judge turns 70
N.Y. Const. Art VI, § 25(b)
North Carolina
Must retire at end of the month in
which judge turns 72
N.C. GEN. STAT. § 7A-4.20
North Dakota
No age limit
N/A
Ohio
Cannot be re-elected or appointed
after age of 70
Oh. Const. art. IV, § 6(C)
Oklahoma
No age limit
N/A
Oregon
Must retire at end of calendar year
in which judge turns 75
Ore. Const. art. VII (amended), § 1a
Pennsylvania
Must retire at end of calendar year
in which judge turns 70
Pa. Const. art. V, § 15(b)
Rhode Island
No age limit
N/A
South Carolina
Age limit of 72
S.C. CODE ANN. § 9-8-60(1)
South Dakota
Automatically retired on the first
Tuesday after the first Monday of
January after the general election at
which members of the state
legislature are elected immediately
following the attainment of age 70
of such justice
S.D. CODIFIED LAWS § 16-1-4.1
Tennessee
No age limit
N/A
Texas
Age limit of 75, but a judge who
turns 75 during a term in office may
complete the term
Tex. Const. art. V, § 1-a
Utah
Age limit of 75
UTAH CODE ANN. § 49-17-701
Vermont
Must retire at end of calendar year
in which judge turns 70
Vt. Const. § 35
Virginia
Must retire twenty days after the
convening of the next regular
session of the state general
assembly after the justice turns 73
VA. CODE ANN. § 51.1-305(B1)
Washington
Must retire at end of calendar year
in which judge turns 75
Wash. Const. art. IV, § 3(a)
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Federal and State Courts: Structure and Interaction
West Virginia
No age limit, but the state supreme
court may retire any justice who
“because of advancing years and
attendant physical or mental
incapacity, should not, in the
opinion of the supreme court of
appeals, continue to serve as a
justice….”
W. Va. Const. art. VIII, § 8
Wisconsin
Must retire after the first July 31
following the date on which the
judge turns 70
Wis. Const. art. VII, § 24(2)
Wyoming
Age limit of 70
Wyo. Const. art. 5, § 5
Source: Table prepared by the Congressional Research Service.
Author Information
Joanna R. Lampe
Legislative Attorney
Laura Deal
Law Librarian
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Congressional Research Service
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