PastPaperHero | The nature of judicial review - The 'adequate and independent state ground

Learning Outcomes

This article explains the adequate and independent state ground (AISG) doctrine as a limit on U.S. Supreme Court review of state court judgments, including:

Identifying when the Supreme Court has appellate jurisdiction over final state court judgments raising federal questions.
Defining AISG and articulating how it functions as a jurisdictional bar to Supreme Court review.
Distinguishing adequate from inadequate state grounds, with attention to both substantive and procedural state rules.
Evaluating whether state procedural rules are firmly established, regularly followed, and neutrally applied so as to constitute adequate grounds.
Separating independent state grounds from those interwoven with federal law and recognizing when state law is merely coextensive with federal doctrine.
Applying the Michigan v. Long presumption to ambiguous state opinions that combine state and federal analysis.
Assessing whether a state court’s reliance on procedural default prevents consideration of a forfeited federal claim on certiorari.
Analyzing MBE-style fact patterns to determine if a federal issue is reviewable or instead barred by adequate and independent state grounds.

MBE Syllabus

For the MBE, you are required to understand federal judicial power and its limits over state court judgments, with a focus on the following syllabus points:

The nature and scope of Supreme Court appellate jurisdiction, particularly review of state court judgments.
The adequate and independent state ground doctrine as a jurisdictional bar.
When a state law ground is adequate (substantively or procedurally) to support the judgment regardless of federal law.
When a state law ground is independent of federal constitutional or statutory interpretation.
The effect of ambiguous state court opinions that mix state and federal analysis, including the Michigan v. Long presumption.
How state procedural rules (e.g., timeliness, preservation rules) can bar federal review when they are firmly established and regularly followed.
How these doctrines appear in multiple-choice questions asking whether Supreme Court review is permitted.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Under the adequate and independent state ground doctrine, the U.S. Supreme Court must dismiss a case for lack of jurisdiction when a state court judgment:
1. Addresses both federal and state law issues in the same opinion.
2. Rejects a federal defense and mentions state law only in passing.
3. Rests on a state law ground that fully supports the result even if the federal issue is decided the opposite way.
4. Conflicts with a decision from a federal court of appeals in another circuit.
For a state law ground to be adequate to bar U.S. Supreme Court review, it must:
1. Reflect the state’s public policy preferences.
2. Be based on any state procedural rule, even if applied for the first time in the case.
3. Be sufficient, by itself, to support the judgment so that changing the federal ruling would not change the outcome.
4. Be expressly labeled “adequate” by the state legislature.
A state law ground is independent if:
1. The state court treats its state constitution as providing the same protections as the U.S. Constitution, citing only federal cases.
2. The state court’s reasoning is so unclear that it is impossible to separate state and federal law.
3. The state court clearly states that its judgment rests on state law alone and that any federal discussion is merely advisory.
4. The state ground concerns procedure rather than substance.
A state supreme court opinion relies on both the state constitution and the U.S. Constitution but does not clearly say whether its holding depends on state law alone. Under Michigan v. Long, the U.S. Supreme Court will:
1. Presume it has jurisdiction and may review the federal issue unless the state court clearly indicates reliance on adequate and independent state grounds.
2. Presume it lacks jurisdiction because any reference to state law makes the decision unreviewable.
3. Automatically remand to the state court for clarification and decline review.
4. Review only the state law issue and not the federal issue.

Introduction

The U.S. Supreme Court is the final arbiter of federal law, not of state law. Its appellate jurisdiction over state court judgments exists to ensure the supremacy and uniformity of federal law, but that jurisdiction is limited. One of the most important limits is the adequate and independent state ground doctrine, frequently tested on the MBE in questions asking whether the Supreme Court can review a particular state court decision.

The basic idea is this: if the state law basis for the judgment is sufficient to sustain the result even if the federal law issue were decided differently, the Supreme Court’s decision on the federal issue would not change the outcome. In that situation, there is no true “case or controversy” about federal law for the Supreme Court to resolve, and review is barred.

Key Term: Supreme Court Appellate Jurisdiction
The authority of the U.S. Supreme Court to review final judgments of state and federal courts on questions of federal law, subject to constitutional and statutory limits such as the adequate and independent state ground doctrine.

The Court’s appellate jurisdiction over state decisions is primarily implemented by statute (28 U.S.C. § 1257), which authorizes review of “[f]inal judgments or decrees” of state courts that turn on federal law. However, the Court will not decide federal questions in a vacuum. If a state court judgment rests on a state law ground that is both adequate and independent of federal law, the Supreme Court lacks jurisdiction to review the federal issue.

Key Term: Adequate and Independent State Ground (AISG)
A state law basis for a judgment that (1) by itself fully supports the result (adequate) and (2) does not depend on federal law (independent). When present, it bars U.S. Supreme Court review of any federal question in the case.

Understanding what counts as “adequate” and “independent,” and how to deal with ambiguous state court opinions, is critical for MBE success.

The Adequate and Independent State Ground Doctrine

The doctrine serves several purposes:

It respects federalism, leaving state courts as the final authority on state law.
It avoids advisory opinions—opinions on federal questions that cannot affect the judgment.
It conserves Supreme Court resources by preventing review of cases where its decision could not change the outcome.

On the MBE, you will typically see a fact pattern in which a state supreme court decides a case on both federal and state grounds. You must decide whether the Supreme Court can review the federal ruling. The analysis always proceeds in two steps:

Does the judgment rest on a state law ground?
If so, is that state law ground adequate and independent?

If both are satisfied, Supreme Court review is barred.

Adequacy

For a state ground to be adequate, it must fully support the outcome of the case. In other words, even if the state court misinterpreted federal law, applying the correct federal rule would not change the judgment because state law alone requires the same result.

Key Term: Adequate State Ground
A state law basis that, standing alone, is sufficient to sustain the judgment so that the result would be unchanged even if the federal issue were decided differently.

Adequacy comes up in two main forms:

Substantive adequacy – the state substantive law (constitutional provision, statute, or common law rule) requires the same result.
Procedural adequacy – a state procedural rule (e.g., timeliness, preservation, pleading) provides a sufficient basis to uphold the judgment.

Substantive Adequacy

A state substantive ground is adequate if:

It is actually applied by the state court to uphold or reject the claim; and
It would require the same outcome regardless of the federal issue.

Example: A state constitution provides broader free speech protection than the First Amendment. The state supreme court invalidates a statute under the state constitution and says it need not reach the federal question. The state constitutional holding is adequate—striking the statute under state law fully resolves the case.

Procedural Adequacy

State procedural rules—such as time limits for filing appeals or requirements to raise issues at trial—can also be adequate grounds barring Supreme Court review, but only if applied in a fair, predictable manner.

Key Term: Procedural Adequacy
The requirement that a state procedural rule used to bar a federal claim be firmly established, regularly followed, and not applied in an unexpected or unfair way in the particular case.

Key points:

The procedural rule must be firmly established and regularly followed at the time of the litigant’s conduct.
The rule must not be applied in a novel, unforeseeable, or discriminatorily harsh way merely to avoid deciding a federal claim.
The rule cannot impose an unreasonable burden on the assertion of federal rights (e.g., an impossibly short filing deadline applied only to federal claims).

If a state court uses such a regular, neutral procedural rule (for example, “issues not raised at trial are waived on appeal”) to reject a federal constitutional argument, that procedural default is an adequate state ground.

Key Term: State Procedural Default
A failure by a litigant to comply with a state procedural requirement (e.g., timely objection, proper appeal) that causes the state court to refuse to consider a federal claim; when the rule is adequate and independent, it bars U.S. Supreme Court review of that claim.

If the default is adequate and independent, the Supreme Court cannot review the forfeited federal claim.
If the rule is not firmly established or is applied in a surprising way, adequacy may fail, leaving room for federal review.

Worked Example 1.1

Defendant was convicted under a state statute. She appealed to the state supreme court, arguing the statute violated both the U.S. Constitution’s Equal Protection Clause and an equivalent provision in the state constitution. The state supreme court agreed the statute violated the state constitution’s equal protection provision and reversed the conviction on that basis alone, explicitly declining to reach the federal question. Can the state seek review in the U.S. Supreme Court?

Answer:
No. The state supreme court’s judgment rests on an adequate and independent state ground. The state constitutional ruling is adequate because it completely supports the reversal of the conviction regardless of what federal law requires. The court did not need to decide the federal question. It is independent because the court based its decision solely on its interpretation of the state constitution. The U.S. Supreme Court therefore lacks jurisdiction.

Worked Example 1.2

A plaintiff sues a city in state court for violating the federal First Amendment and a broader free-speech clause in the state constitution. The state supreme court holds that the city’s action violates the state constitution and adds: “Because the state constitution provides more protection than the First Amendment, we would reach the same result even if the federal claim failed.” The court briefly discusses federal precedent only as “persuasive.” The city petitions for certiorari. Is the state ground adequate?

Answer:
Yes. The state constitutional holding is adequate because the court expressly states that the state provision, by itself, requires the result and that the same outcome would follow even if the federal claim were rejected. The state ground fully supports the judgment, so the Supreme Court’s resolution of the federal issue could not change the outcome.

Independence

Even if a state ground is adequate, the Supreme Court can still review the case if the state law ground is not independent—that is, if the state court’s interpretation of state law is intertwined with federal law.

Key Term: Independent State Ground
A state law basis for a judgment that does not depend on, or incorporate, federal law or federal constitutional interpretation.

Independence requires that the state ground:

Not rely on the meaning of a federal provision; and
Not be so “interwoven” with federal analysis that the Court cannot disentangle the two.

Indicators that a state ground is not independent:

The state court explicitly states that its state constitution provides exactly the same protection as the U.S. Constitution and treats federal precedent as controlling.
The court’s reasoning alternates between federal and state citations without clearly distinguishing them, so it is unclear whether state law adds anything distinct.

By contrast, a state ground is independent when the court:

Clearly states that it is relying on state law alone, and
Treats federal cases as persuasive but not controlling.

Worked Example 1.3

A state supreme court invalidates a police search under both the Fourth Amendment and a parallel provision in the state constitution. The court says: “Our state search-and-seizure clause is interpreted to provide the same protection as the Fourth Amendment, and we follow U.S. Supreme Court precedent as binding in this area.” The state seeks Supreme Court review. Is the state ground independent?

Answer:
No. The state court explicitly ties the meaning of its state constitutional provision to the federal Fourth Amendment and treats federal precedent as controlling. The state ground is not independent because it is defined entirely by federal law. The U.S. Supreme Court may review the federal question.

Worked Example 1.4

A different state supreme court invalidates a search under its state constitution, saying: “Our state search-and-seizure clause affords broader protection than the Fourth Amendment; we rely on state precedent and refer to federal decisions only for comparison.” It does not reach the federal question. The state seeks Supreme Court review. Is the state ground independent?

Answer:
Yes. The court states that its state provision affords broader protection than federal law and relies on its own precedent. Federal cases are cited only for comparison. The state ground is independent of federal law, so the Supreme Court lacks jurisdiction.

Ambiguity and the Michigan v. Long Presumption

Often, state opinions are ambiguous: they cite both federal and state authorities and do not clearly indicate whether the judgment rests on state law alone. To handle this, the Supreme Court adopted a presumption in Michigan v. Long.

Key Term: Michigan v. Long Presumption
A rule that when a state court opinion appears to rest on both federal and state law and the basis is unclear, the U.S. Supreme Court presumes it has jurisdiction to review the federal issue unless the state court clearly and expressly states that its judgment rests on adequate and independent state grounds.

Under Michigan v. Long:

If a state court opinion fairly appears to rest on federal law or is interwoven with federal law, and
There is no clear statement that the decision rests on independent state grounds,
The Supreme Court will presume it has jurisdiction and may review the federal question.

To avoid review, a state court must use a clear “plain statement,” such as: “Our decision rests on adequate and independent state grounds; any discussion of federal law is for guidance only.”

Worked Example 1.5

A state supreme court suppresses evidence, citing both the Fourth Amendment and a parallel state provision. The opinion alternates between state and federal cases but contains no statement that the judgment rests on state law alone. The prosecutor petitions for certiorari. What will the U.S. Supreme Court likely do?

Answer:
Under Michigan v. Long, the Supreme Court will presume it has jurisdiction because the opinion appears to rest on federal law and there is no clear statement that state law alone controls. The Court may grant review and decide the federal search-and-seizure issue.

AISG and State Procedural Defaults

As noted above, procedural state grounds frequently appear in exam questions:

A defendant fails to object at trial on federal constitutional grounds.
A party files an appeal outside a state-imposed time limit.
A litigant fails to comply with a specific pleading or preservation rule.

If the state court bases its judgment on such a procedural default, and the rule is:

Firmly established and regularly followed, and
Applied evenhandedly to similar claims (state and federal),

then the procedural ruling is an adequate and independent state ground barring Supreme Court review of the federal claim.

On the other hand, if the state court:

Creates a new procedural rule solely to avoid reaching the federal question, or
Applies a rule in a novel or discriminatory way against federal claims,

the state ground may be deemed inadequate, allowing Supreme Court review.

Exam Warning

Be careful not to confuse substantive state law grounds with state procedural grounds, and do not assume that every procedural ruling is automatically adequate. For MBE purposes, remember:

A state procedural ruling (for example, “federal issues must be raised at trial or are waived on appeal”) can be an adequate state ground only if:
- It is consistently applied in similar cases, and
- It does not impose an unreasonable burden on the assertion of federal rights.
A novel, selectively applied, or unforeseeable procedural rule is usually not adequate and does not bar Supreme Court review.

Whenever you see a state court rejecting a federal constitutional argument because the party failed to comply with a procedural requirement, ask:

Is the rule neutral, longstanding, and regularly applied?
- If yes, likely adequate and independent, no Supreme Court review.
- If no, adequacy is doubtful, and review may be available.

Key Point Checklist

This article has covered the following key knowledge points:

The U.S. Supreme Court exercises appellate jurisdiction over state court judgments only on federal questions.
The adequate and independent state ground (AISG) doctrine bars Supreme Court review when a state ground alone fully supports the judgment and is independent of federal law.
A state ground is adequate if the outcome under state law would be the same even if the federal issue were decided differently.
State procedural rules (e.g., timeliness, preservation) can be adequate grounds if they are firmly established, regularly followed, and not applied in an unfair or discriminatory way.
A state ground is independent when the state court’s decision does not depend on federal law and clearly relies on state law alone.
When a state opinion is ambiguous about its reliance on state versus federal law, the Michigan v. Long presumption allows Supreme Court review unless the opinion clearly states it rests on AISG.
State procedural defaults that satisfy adequacy and independence bar Supreme Court review of the forfeited federal claim.
On the MBE, questions often ask whether the Supreme Court has jurisdiction to review a state court decision; always analyze adequacy and independence before answering.

Key Terms and Concepts

Supreme Court Appellate Jurisdiction
Adequate and Independent State Ground (AISG)
Adequate State Ground
Independent State Ground
Procedural Adequacy
State Procedural Default
Michigan v. Long Presumption

The nature of judicial review - The 'adequate and independen...