Concept
Adequate State Grounds
The “adequate and independent state ground”
Adequate State Grounds
The previous section showed that a state ground bars review only when it is both adequate and independent. Adequacy is the first of those two requirements. A state ground is adequate when it fully sustains the result and does not itself violate the Constitution or any other federal law.1 Each half of that definition does separate work. The requirement that the ground fully sustain the result guarantees that reversing the federal ruling could change nothing, since a ground that supports only part of the judgment would leave the federal question capable of altering the outcome. The requirement that the ground not violate federal law follows from the Supremacy Clause, because a state cannot use its own constitution or statutes to take away rights that federal law protects, and a ground that attempts this cannot be what holds the judgment up.2
This second half explains why adequacy is itself a question of federal law, even though the ground under examination is made of state law. The Court accepts the state court's reading of its own law as final and asks only whether that law, as applied to the litigant, may stand against the federal claim.3 The answer depends on what kind of state ground is at issue. A substantive ground is a state-law rule that decides the merits of the dispute, such as a state constitutional provision that protects a defendant more generously than the federal Constitution does. A procedural ground is a state rule about when and how a claim must be raised, such as a contemporaneous-objection requirement that keeps a litigant from presenting a federal claim at all. The Court has drawn this distinction in its adequacy cases, and the two kinds of ground are tested differently.4
Both kinds of ground still answer to the same underlying question: if the Court reversed the federal ruling, could the state ground sustain the judgment anyway, without itself conflicting with federal law? What differs is the way the Court reaches the answer. A procedural ground raises a worry that a substantive ground does not, namely that a state court may invoke a technicality as a pretext for avoiding a federal claim, so the test for procedural grounds looks at the rule itself and at how the state applies it.5 The first subsection takes up substantive state grounds, where the test is most direct.
Substantive State Grounds
When the state ground under examination is substantive, meaning a state-law rule that decides the merits of the dispute, the adequacy test is short. A state ground is adequate if it fully supports the result and does not conflict with the U.S. Constitution, a federal statute, or a federal treaty.6 The first requirement asks whether the state-law holding, standing alone, produces the judgment, so that reversing the federal ruling would leave the result untouched. The second asks whether the state rule survives contact with federal law, since the Supremacy Clause ranks the Constitution, federal statutes, and treaties above any state rule that collides with them. Both requirements aim at one practical question: whether a decision on the federal issue could change who wins. This section assumes that the state ground is independent of federal law, because independence is a separate step taken up in the next section.
The test turns on the direction of the state ruling because of the way federal and state law are arranged. State courts are the final interpreters of their own law, and the Supreme Court has no power to correct a state supreme court's reading of its own constitution or statutes.7 The federal Constitution, for its part, establishes minimum guarantees of individual rights, so a state that grants additional liberties does not violate it.8 A state ground that adds rights therefore passes both requirements: it cannot conflict with a floor that it sits above, and it holds the judgment up even if the federal ruling is reversed, because the added protection remains in place. A state ground that takes rights away has the opposite problem. State law that purports to authorize what federal law forbids collides with the Supremacy Clause, and the Court can learn whether that collision exists only by deciding the federal question.9
The death penalty supplies a matched pair in which only the direction of the state ruling changes. In the standard illustration, Abbey Jones is convicted of second-degree murder and sentenced to death, and the state supreme court holds that execution violates both the state constitution and the Eighth and Fourteenth Amendments. The state petitions for certiorari on the federal ruling. The state ground fully sustains the result, since under the state constitution Jones cannot be executed whatever the Eighth Amendment says, and the Supreme Court cannot review the correctness of that ruling about the state's own constitution.10 Nor does the ground conflict with federal law. Second-degree murderers may have no federal right against execution, but the state may give them that right under its own constitution, because the Eighth Amendment permits executions in some circumstances and does not require them.11 The ground is adequate, and the Court cannot hear the case.
Reverse the direction and the answer reverses with it. If the state supreme court instead affirms the death sentence, holding that it violates neither the state nor the federal constitution, the only state-law ground in the case is the one authorizing the sentence, and Jones petitions for certiorari. Were the Supreme Court to find that the federal Constitution forbids this execution, that state ground would be invalid under the Supremacy Clause, because a state may not use its constitution or laws to take away rights that a person enjoys under federal law.12 The ground therefore cannot hold the judgment up, a decision on the federal question controls the result, and the Court may grant the petition. The single fact that moved the answer is the direction of the state ruling: a ruling that adds protection survives any federal decision, while a ruling that withholds protection depends entirely on how the federal question comes out.
Lawyers often describe the same asymmetry as a floor and a ceiling. Supreme Court interpretations of the federal Constitution set the floor below which state courts cannot go, while state supreme courts may raise the ceiling by finding greater protection in their own constitutions.13 Once the Court holds that commercial speech is protected by the First Amendment, a state court cannot reread the First Amendment or the state constitution to withdraw that protection, because doing so would drop below the floor. Once the Court holds that obscene material falls outside the First Amendment, a state court can still read a state constitutional right of conscience to protect it, which raises the ceiling and leaves nothing for the Supreme Court to correct.14
The asymmetry should not be overread, because the freedom to add rights belongs to state law. A state court that raises the ceiling must find the added protection in its own constitution or statutes, and it may not read the federal Constitution to give more protection than the Supreme Court has prescribed.15 In Michigan v. Long itself, the Michigan Supreme Court gave motorists more protection against police searches than the Fourth Amendment, as the Supreme Court understood it, required, so the added-rights ground was presumably adequate and the live question was whether that ground was independent of federal law.16 Students lose this issue when they assume that any expansion of rights is shielded from review, since the shield attaches only when the expansion rests on state law. The next two sections return to that point when they take up independence.
The fourth step is where mistakes occur. A ground that withholds protection does not bar review, because the Court must take the case and decide whether the federal right exists before it can know whether the state ground survives. The fifth step is also easy to forget, since a ground that is adequate still bars review only when it is independent.
Procedural State Grounds
A procedural state ground is a state rule about when and how a claim must be raised, such as a contemporaneous-objection requirement that keeps a litigant who failed to object at trial from pressing a federal claim later.18 It changes the adequacy inquiry in a way that substantive grounds do not. When a state ground is substantive, a ruling on the federal question cannot affect the result so long as the state-law holding stands. A procedural default can instead prevent a federal right from being enforced at all, because it keeps the federal claim from ever being heard on the merits. For that reason, when and how a default bars a federal claim is itself a federal question, and the Court answers it for itself rather than accepting the state court's characterization.19
The leading illustration is Henry v. Mississippi. The state supreme court there acknowledged that illegally obtained evidence had been admitted at a criminal trial, yet refused to reverse because the defendant had not objected at the moment the prosecution offered it, as state law required.20 The state ground was clearly independent of federal law, so the live question was adequacy. The answer given was that a state procedural rule can preclude consideration of a federal right only when insisting on compliance serves a legitimate state interest, and the Court asks that question about the enforcement of the forfeiture in each case.21
The test reconciles two interests that pull in opposite directions. States have a real stake in orderly litigation: a timely objection gives the trial court an immediate chance to avoid the alleged error and signals how much the party cares about the question, and a preservation requirement reduces the number of constitutional questions that reach appellate courts.22 The Court therefore ordinarily lets state law govern how federal issues are raised in state courts, much as a state court applying another state's law follows its own procedures.23 If the Court deferred to every default, however, a state could defeat federal claims by writing technical rules or by invoking its rules selectively, and the protection of federal rights would depend on the state's good faith. State courts can use procedural rules to nullify federal claims, which is why the Court looks closely at both the rule and its application.24
The first two questions have the most direct rationale. A rule that violates the Constitution fails for the same reason a substantive ground that conflicts with federal law fails: it cannot be what holds the judgment up. A rule that gives a litigant no fair opportunity to assert the federal question is an example.26 The legitimate-interest question is applied to the case at hand. A federal claim stays reviewable where the litigant substantially complied with the essential requirements of the rule and nothing would be gained by demanding more exact compliance, although a rule is not inadequate merely because it is imprecise or leaves room for judicial discretion.27
The consistency question targets selective enforcement. A rule must be regularly and consistently applied to count as adequate, a state court may not manipulate its rules to evade federal rights, and a rule that was not firmly established when the defendant was tried cannot be applied retroactively to bar an objection.28 The same concern lies behind NAACP v. Alabama ex rel. Patterson, where the Court treated a state ground as inadequate because the state supreme court's decision could not be reconciled with its own past unambiguous holdings.29 A court that enforces a rule against one litigant after excusing noncompliance for others gives a reason to suspect that the rule is serving as an excuse to avoid the federal claim.
The same suspicion explains why defaults that are trivial or contrived are inadequate. A complaint raising a federal constitutional claim that is dismissed because it contained two misspelled words is the standard example, since the default is so slight that it looks like a pretext.30 Yet the Court is likely to uphold a procedural forfeiture unless the state court seized on a pretext to avoid the merits. In Sanchez-Llamas v. Oregon the Court upheld as adequate a state forfeiture applied to a noncitizen criminal defendant who failed to make a timely objection to a violation of his rights under a treaty.31 The default was the ordinary kind, a missed deadline to which an evenly enforced rule attaches a consequence, and nothing suggested pretext. Students lose this issue when they assume every procedural default is adequate, because the Court examines the rule and its application before it honors a forfeiture.32
The standard illustration of a default that fails the test involves a defendant named Charles. At his state criminal trial he asked the judge to admonish the jury that no adverse inference could be drawn from his decision not to testify. The Supreme Court has held that such an instruction must be given on request to protect the Fifth and Fourteenth Amendment right to remain silent, but the judge gave none, and Charles was convicted. The state supreme court affirmed, ruling that by asking for an “admonition” rather than an “instruction” he had failed to comply with required state procedures.33
Running the questions against that default shows how each one works. The rule requiring defendants to request the instructions they want does not itself violate due process or any other constitutional provision, so the first question favors the state. The second question favors Charles, because a good argument can be made that no legitimate state interest is served by insisting that requests be phrased in specific magic words.34 The third question may favor him as well if other judges have given the desired instruction when a defendant asked only for an “admonition,” since that history would show the rule is not applied on a consistent basis.35 Success on either argument makes the ground inadequate, and the Court may then reach the federal claim. The decision on which this illustration draws, James v. Kentucky, supports that conclusion.36
The cause-and-prejudice showing is the escape route that remains open even when a procedural rule is otherwise adequate. The litigant must show that there was good reason for failing to follow the procedure and that harm resulted, and as applied this is a difficult standard to satisfy.37 Charles has a candidate for each part. The distinction between “admonitions” and “instructions” is highly ambiguous and hard to comply with, which supplies the cause, and if the Court also agrees that he was harmed by the judge's failure to give the requested instruction, the state decision does not rest on an adequate procedural ground.38 Because both parts are required, a litigant with a good excuse but no real harm remains barred, as does one who was harmed but cannot explain the omission. The same cause-and-prejudice vocabulary governs defaulted claims in federal habeas review, a separate body of doctrine that this chapter leaves aside.39
A procedural ground that passes every adequacy question still bars review only if it is also independent of federal law. In Henry the independence of the state rule was clear, which is why adequacy was the whole dispute, but many cases do not present independence so cleanly, and the next section takes up that second requirement.