On this day in Supreme Court history, Congress enacted the Supreme Court Case Selections Act of 1988. The Act was designed to “improve the administration of justice by providing greater discretion to the Supreme Court in selecting the cases it will review, and for other purposes.”
The Act amended 28 U.S.C. § 1257 to eliminate the right of appeal to the Supreme Court from certain state-court judgments. Prior to the enactment of the Act, in cases where the highest state court had either found a federal statute or treaty to be invalid, or had found a state statute not to be invalid in the face of federal law, the party who had not prevailed had had the right to appeal to the U.S. Supreme Court.
Prior to the enactment of the Act, § 1257 read as follows:
1257. State courts; appeal; certiorari
Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
(1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity.
(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.
(3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.
The Act removed subsections (1) and (2), which had provided for the right of appeal, struck “appeal” from the section catchline, and reorganized the remaining text:
1257. State courts; certiorari
(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.
After the Act took effect, in most cases, the only avenue by which a litigant could obtain review of most lower court decisions was through the writ of certiorari, which was granted at the discretion of the Supreme Court, rather than available to the litigant as a matter of right.