The 1789 Judiciary Act's Section 251 has proved an embarrassment for those claiming that all federal question jurisdiction must vest, either originally or by appellate review, in the federal courts. (2) Because Congress did not provide for general federal question jurisdiction in the lower federal courts until 1875, (3) Supreme Court review of state court judgments under Section 25 would be needed to ensure that all cases arising under federal law would vest in some Article III court. On its face, however, Section 25, as well as its 1867 successor, (4) excluded some federal issues from Supreme Court review of state court judgments, particularly when the state court overvindicated a federal claim. (5) Indeed, review at the instance of either side of federal issues was not clearly available until Congress amended the review provisions in 1914. (6) This amendment responded to the apparent unreviewability of the New York Court of Appeals' decision in Ives v. South Buffalo Railway Co., (7) holding that the state's workers' compensation law was unconstitutional. (8)

A leading modern proponent of mandatory vesting, Akhil Amar, sought to blunt the impact of Section 25 on his mandatory vesting claim by two arguments--one specific to Section 25 and the other more general as to the role of federal question jurisdiction. As to Section 25 specifically, Amar reasoned that the direct review provisions in fact did encompass all federal questions, because Section 25's text could be read to include either side's claim under federal law. (9) He argued that "[i]n virtually every case in which one party argues for a federal 'right,' the other side can argue that it has a federal 'immunity'--which is simply another way of saying that one's opponent has no federal right." (10)

Ann Woolhandler, Powers, Rights, and Section 25, 86 Notre Dame Law Review, 1241–1287 (2011).