More than a century ago, the then former Justice Curtis reminded the Bar that "questions of jurisdiction were questions of power as between the United States and the several States." Accordingly, any expansion of the jurisdiction of federal courts is an occasion for alarm for those to whom the slogan of "state's rights" is a substitute for analysis. Justice Curtis was aware, however, that Scylla and Charybdis were both to be avoided. Failure to extend the jurisdiction of federal courts to appropriate cases may be as great a disservice to the federal system as an undue expansion of that jurisdiction. The charting of a course between these hazards would be difficult enough if, as in the legend, the location of the hazards were stationary. The difficulty is compounded, however, by the necessity of giving due consideration to changes in federal-state relationships. Jurisdictional rules formulated in 1789 or in the aftermath of the Civil War are not necessarily adequate to the problems of 1965.
These considerations suggest both the difficulty and the delicacy of the task which the Court appears to have set itself last Term in Henry v. Mississippi. That decision, if I read it correctly, strongly intimates that at least five Justices are prepared to undertake-perhaps have already undertaken-a major reassessment of the Court's jurisdiction to review judgments of state courts, the first such reassessment since the decision in Murdock v. City of Memphis exactly ninety years earlier.
Publication Information & Recommended Citation
Sandalow, Terrance. "Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine." In The Supreme Court and the Judicial Function, edited by P. B. Kurland, 135-87. Chicago: Univ. of Chicago Press, 1975.