For some time I have been reading and listening to criticisms directed toward decisions which the Supreme Court has rendered in cases involving federal question jurisdiction. The general 'tenor of this criticism is that these decisions demonstrate a surprising lack of uniformity and conscious purpose. Writers profess to search in vain for sound logic in the Court's opinions. They point up instead the anomaly which is reflected when cases involving a substantial federal issue are tried in state courts, while those in which no real federal issue is involved are nevertheless accepted for trial in the federal courts. This result, however, cannot be regarded as· happenstance. The Court must be as fully aware of the result as the rest of the legal community. That it persists in its interpretation is evidence that it believes its decisions fully comprehend the Constitutional and Congressional policies underlying the federal question. If that be so, the policy behind this. type of jurisdiction cannot be to insure an initial trial in the federal courts for every controversy involving a federal question, as some have apparently thought. The real policy or policies behind the decisions relating to federal question jurisdiction can be ascertained only with the help of history. The legal analyst too often forgets that his logic must be applied in context. Whether or not the decisions of the Supreme Court follow a pattern which has elements both of reason and of sound policy. depends upon the historical ingredients. It seems useless to criticise decisions for their lack of reason without first establishing the policy criteria by which those decisions are to be judged. Until we establish the real meaning of "federal question" and learn: what prompted its statutory treatment we cannot judge the actions of the Court when it deals with this matter. In order, therefore, to side intelligently either with the Court or its critics we must follow the emergence and development of "federal question" through the historical periods in which it has taken shape.
G. M. Bergman,
REAPPRAISAL OF FEDERAL QUESTION JURISDICTION,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol46/iss1/3