Bonus 209: State Courts and Federal Prisoners
A nerdy detour down a Federal Courts rabbit hole—and into the outsized implications of the Supreme Court's deeply obscure, obtuse, and almost certainly incorrect 1872 ruling in "Tarble's Case"
Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly “bonus” issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:
I started writing a post about the eleventy different things Attorney General Bondi has done lately that, in any other time, would have prompted her immediate dismissal (and, failing that, articles of impeachment from the House of Representatives). But, frankly, I’m a bit worn down from writing (to say nothing about thinking) about current events, and thought I’d aim instead for a bit of a nerdier timeline cleanse.
To that end, I thought I’d use today’s bonus issue in the vein in which I’d originally intended to use these bonus issues—to introduce broader audiences to some of the more quietly important (if exasperatingly technical) older features of the Supreme Court’s jurisprudence. Today’s topic, which is at least loosely prompted by recent events, is the Supreme Court’s 1872 decision in Tarble’s Case—in which the Court categorically barred state courts from issuing writs of habeas corpus to federal jailers (i.e., to review the legality of the federal government’s detention of prisoners, whether they’d been detained with or without prior judicial process).
Justice Field’s majority opinion in Tarble has long befuddled Federal Courts scholars. It was clearly motivated by a deeply practical problem (the specter of southern state courts gleefully over-reading the Constitution to free federal prisoners during Reconstruction). But rather than resting on those practicalities, it turns on a constitutional claim that, if correct, would be in direct tension not only with how state courts operated at—and for decades after—the Founding, but with the longstanding assumptions that (1) state courts are generally capable of deciding federal question lawsuits; and (2) the Constitution left it to Congress to decide whether to create lower federal courts at all (the so-called “Madisonian Compromise”).
As I explain below the fold, I think the far better reading of Tarble is the one that the editors of the leading Federal Courts casebook first propounded in 1953—that the reason why state courts couldn’t grant a writ of habeas corpus to Tarble’s jailer was entirely because, at that time, federal courts could. But especially as we’re (unfortunately) thinking more and more about the extent to which state courts can hold federal officers (and the federal government itself) accountable, it may be time to rethink—or at least revisit—Tarble, too.
For those who are not paid subscribers, we’ll be back Monday (if not sooner) with more immediately relevant coverage of the Supreme Court and related topics. For those who are, please read on.
