Academic journal article Albany Law Review

Michigan V. Long: A Twenty Year Retrospective

Academic journal article Albany Law Review

Michigan V. Long: A Twenty Year Retrospective

Article excerpt


Respect for judicial federalism requires the Supreme Court to avoid deciding questions of state law when reviewing state court decisions. (1) The Supreme Court's power lies only in interpreting federal legal questions raised by these courts. Accordingly, the Court will deny jurisdiction over issues that are settled on the basis of "independent ... and adequate" state legal grounds. (2) However, determining whether state court decisions are controlled by state or federal law, when both are discussed in state court opinions, has proved to be a persistent problem for the Court. (3)

Citing problems with previous methods, the Court adopted a new approach in Michigan v. Long. (4) The Court held that when a state court discussed both state and federal law in its opinion, but was not clear about which was controlling, the Court would presume that the decision was based on federal law, unless the state court included a "plain statement" to the contrary. (5) The Long rule differed from past approaches in two ways. First, earlier approaches tended to presume that ambiguously worded decisions rested on state law. (6) Long reversed this presumption. Second, for the first time the Supreme Court provided a formula for state courts to use to signal that their decisions rested on state grounds.

As we approach the twentieth anniversary of the Long decision, this article offers a retrospective of the case, by primarily analyzing subsequent Supreme Court decisions that have cited Long. (7) Thus, this study essentially analyzes Long through the opinions and decisions of the Court itself. The results reveal that the Court has remained committed to the Long rule for the past two decades. However, the success of Long in achieving its goals has not been uniform. The realization of most of its goals depends on the responses of state courts, and their responses have not always been conducive to meeting these goals.


The Supreme Court has cited Long in majority, concurring, and/or dissenting opinions in fifty-eight cases. The Long rule has been the subject of forty-one. (8) Most of these cases, thirty-four out of forty-one, or eighty-three percent, were decided in the first seven years following Long. (9) Only seven Supreme Court decisions have cited the Long rule in the past thirteen years. (10) Nearly half the states (twenty-four) generated cases that were decided by the Court when invoking Long. (11) Most of the cases, thirty-two out of forty-one, or seventy-eight percent, involved criminal defendant rights. (12) Two free expression cases, (13) a free exercise, (14) and an equal protection (15) case constituted the remainder of the civil rights and liberties cases. Five cases raised a variety of issues that were not related to civil rights and liberties. (16)

Long was cited by majority opinions thirty-four times, (17) dissenting opinions fourteen times, (18) and concurring opinions seven times. (19) Relatively extensive discussions or debates about the Long rule were joined in at least ten cases. (20)

In his dissent in Long, Justice Stevens predicted that the Court would one day reconsider its decision. (21) So far it has not. For twenty years, the Court has invoked the Long rule for determining the legal basis of ambiguously worded state court decisions. Twelve years after Long, in Arizona v. Evans, (22) the majority reiterated its support for Long by declaring that it "properly serves its purpose and should not be disturbed." (23) Further, the Long rule has been extended beyond its original application in a civil rights and liberties case raising a substantive issue on direct review, as the Court has applied the rule to non-civil rights and liberties, (24) state procedural, (25) and habeas corpus cases. (26)

The Long rule has enjoyed the support of solid majorities throughout its history. (27) Still, the dissenters have been persistent. Justices Stevens, Marshall, Brennan, and Blackmun objected to the rule in the original Long decision. …

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