State Court Discretionary Jurisdiction and Federal Habeas Corpus

We are accustomed to thinking of federal and state systems having three basic levels-a general jurisdiction trial court, an intermediate appellate court, and a supreme court (by whatever name)-plus a collection of inferior courts. Yet it is useful to keep some history in mind. Not until 1891, when the U.S. courts of were creat ed by the Evarts Act, did the federal system take its present basic form. Many states retained a two-level system-general jurisdiction trial and single appellate much longer, but, over time, intermediate appellate courts were created in most states. The presence of this new level of courts generally led to a shift in the highest courts' jurisdiction, from being totally mandatory (the had to hear all cases, which came to it as of right) toward being, to a greater or lesser degree, discretionary (the judges could choose cases to be heard). The shift to completely discretionary jurisdiction was neither complete nor immedi ate, statutorily designated mandatory jurisdiction remained, although often reduced over time. Indeed, states that have long had intermediate appellate courts continue to the pre sent day to reduce the highest court's remaining mandatory jurisdiction on a step-by-step basis. State activity paralleled federal development in this regard: while the U.S. courts of were created in 1891, the U.S. Supreme Court did not receive its major grant of discretionary jurisdiction until the so-called Judges Bill in 1925, and the considerable remaining appeals (mandatory) jurisdiction was not eliminated until the mid-1980s. As state high courts obtained the ability to select their cases, they were able to reduce their caseloads to focus on what the judges considered the most important cases. In so doing, they often developed rules or guidelines suggesting to lawyers what criteria will be used in determining which cases to review and which to reject, just the jus tices have so provided in the Supreme Court Rules. This structural history was brought to mind by a recent U.S. Supreme Court deci sion concerning the prerequisites for federal habeas corpus relief sought by someone convicted in state court. Such habeas petitioners have long been required to exhaust available state remedies before turning to the federal courts. The justification for this rule has been comity, or respect for state courts. That is thought to require giving state courts an opportunity to deal with the issues habeas petitioners raise before those peti