 requirement remains. (footnote omitted).
Sometimes, when the self-generation of a legal doctrine through selective regurgitation of case law reaches extremes, it is appropriate to go back to first principles and to reexamine the premises underlying the doctrine. The doctrine to which the majority says it adheres is that "comity" is owed not to sovereignties, but to judges. This fallacy, to which I have referred on another occasion,3 is basic.
I start with the proposition that the only source of the obligation of a federal court having subject matter jurisdiction (which here the majority concedes) to give judgment preclusion effect to state court judgments is statutory. Unlike state courts, which are explicitly bound both by the Full Faith and Credit Clause and the Supremacy Clause, federal courts exercising the judicial power of a separate, and in federal law matters superior, sovereignty would be free, except for a federal statute to the contrary, to disregard the res judicata effect of state court judgments. The statute which is the source of our obligation to give any judgment preclusion effect to a state court judgment, civil or criminal, is the Act of May 26, 1790, 1 Stat. 122, now found in the last paragraph of 28 U.S.C. § 1738. That statute obliges us to afford to such judgments, as well as to state statutes, "the same full faith and credit... as they have by law or usage in the courts of such State...."
Prior to 1867 that statute had no great significance for judgments in state criminal cases, as the lower federal courts lacked a subject matter jurisdiction under which such judgments might be brought in issue. In that period the Supreme Court, bound by the proviso in § 25 of the Judiciary Act of 1789, 1 Stat. 85, was obliged to defer to state court decisions on state law issues, though it possessed appellate jurisdiction over state court judgments rejecting federal claims, even in criminal cases. See Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257 (1821). States-Rights advocates objected strenuously to the invasion of state sovereignty represented by Cohens v. Virginia, but, so far as I know, even Spencer Roan, fulminating in the Richmond Enquirer against the constitutionality of § 25, never suggested that the state judges of Virginia had an interest, separate from the Virginia Commonwealth, in freedom from interference by another sovereign with its judgment. See generally C. Warren, The Supreme Court in United States History, Vol. I at 554-59 (1922). And since Cohens v. Virginia it has not been successfully contended that any federal court having subject matter jurisdiction has any constitutional, as distinguished from statutory, obligation to give preclusive effect to a determination of federal law by a state court.
Since federal law, constitutional and statutory, operates within the territory of the states ex proprio vigore by virtue of the Supremacy Clause, as a matter of absolute obligation rather than as a matter of grace, the use of the term comity in the context of the federal union has always been misleading. The law, if any, to which federal sovereignty affords comity cannot be the state's pronouncement of federal law, but only the state's pronouncement of its own criminal, civil, or procedural law.
Use of this misleading term first crept into the interpretation of the Act of May 26, 1790 not as a way of imposing greater obligations on federal courts regarding state judgments, but as a limitation on the rather absolute wording of that statute. In D'Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648 (1850), for example, the Court considered a New York statute which provided that a New York judgment in a suit against a partnership was good against all partners so long as one was served. Despite the plain language of the May 26, 1790 Act, the Court held that the New York judgment need not be enforced by a federal court sitting in Louisiana against a partner not served in New York. All that was intended by the 1790 Congress, the Court reasoned, was to codify settled principles of international law comity which did not require recognition of the effect of the New York statute.4 See also McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177 (1839); Thompson v. Whitman, 85 U.S. 457, 21 L. Ed. 897 (1873). But to rely on the principle of comity as a reason for restricting the application of the Act of May 26, 1790 is something quite different from the use to which the term has been put by the majority.
In 1867, in its first grant of original federal question jurisdiction, Congress passed the Act of February 5, 1867, 14 Stat. 385, which eliminated the proviso in § 14 of the Judiciary Act of 1789 prohibiting federal courts from issuing writs of habeas corpus for state prisoners. For reasons which need not here detain us,5 that statute did not reach the Supreme Court until 1886. In Ex Parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868 (1886), a pretrial habeas corpus challenge to a state court indictment, the Court construed the language of the 1867 statute as permitting the denial of the writ pending exhaustion of state remedies. There, the Court spoke of comity, not between judges, but between tribunals of separate sovereignties. The Royall holding was codified in 1948. See 28 U.S.C. § 2254(b). If there is any statutory authority for the proposition that comity means not only comity to the sovereignty of New Jersey, represented by its highest law officer, but also, and separately comity to the tender feelings of the state court judges, it must be in that codification. I do not find it in 28 U.S.C. § 2254(b), either expressly or by reasonable implication. Nor would I put it there, since, despite the majority's ipsi dixit, there is no interest of the state court judges, separate from that of the sovereign whose judicial power they exercise, worthy of federal recognition, as an additional obstacle to the enforcement of the Supremacy Clause. Indeed, if there were such a separate interest, the dryly logical extension of its federal recognition (which would not surprise me in the current climate of hostility to federal Supremacy Clause remedies) would be a requirement that separate counsel be appointed to represent the state judges both in habeas corpus cases and on direct appeal to the Supreme Court.
But, even assuming arguendo the correctness of the majority's position, that the doctrine of comity is concerned with the operation of the concurrent judicial systems; the majority, in the instant case, does a grave and inexcusable injustice to the very principles it purports to recognize. As I have stated, New Jersey has statutorily granted its Attorney General authority to speak on behalf of its Judiciary in federal proceedings. For a federal court to determine, sua sponte, that this state delegation of power is to be ignored is an unjustified and unnecessary intrusion into the interrelationships between the separate judiciaries, and, more importantly, the separate sovereignties. And to justify such an intrusion in the name of comity, a doctrine which all agree is primarily concerned with respecting the powers of other institutions, is to make a mockery of the doctrine. In the final analysis, in the name of comity the majority has concluded that the New Jersey Courts are not only deserving of respect from the federal judiciary but also in need of protection from a state legislature which has conferred on that State's Attorney General authority to determine the propriety of waiving the exhaustion requirement in a federal habeas corpus proceeding.
The majority holding, making the exhaustion requirement essentially an element of subject matter jurisdiction, is inconsistent with the settled case law of the Third Circuit. E. g. United States ex. rel. Richardson v. Rundle, 461 F.2d 860, 864 (3d Cir. 1972), cert. denied, 410 U.S. 911, 93 S. Ct. 971, 35 L. Ed. 2d 273 (1973); United States ex rel. Gockley v. Myers, 411 F.2d 216, 219 (3d Cir. 1969) (in banc), cert. denied, 396 U.S. 847, 90 S. Ct. 96, 24 L. Ed. 2d 96 (1969); United States ex rel. Boyance v. Myers, 372 F.2d 111, 112 (3d Cir. 1967). The majority opinion, without mentioning Richardson or Gockley, urges that Boyance was overruled, sub silentio, in Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (in banc). If Zicarelli overruled Richardson, Gockley and Boyance it certainly did so by stealth, since they are nowhere mentioned. Attributing to the court in banc an intention to overrule them by silence in Zicarelli v. Gray is simply not a candid treatment of that opinion, or of the issue it addresses.
The circumstances of Zicarelli and this case are entirely different, for in Zicarelli one sixth amendment claim, the "previously-ascertained-by-law" issue, actually did not surface until the oral argument before this court in banc. It had not been presented even to the federal district court. The other claim in dispute on the issue of exhaustion related to the "cross-section" requirement of the sixth amendment. Since the cross-section claim was factually related to the previously-ascertained-by-law claim, as to which state proceedings were undisputedly required, we held that "it would best serve the interest of judicial economy and efficiency of Zicarelli to