Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc./Dissent Harlan
Mr. Justice HARLAN, dissenting.
The petitioners argue for reversal of the decision below on two separate grounds: first, that petitioners' picketing was protected by the First Amendment from state injunctive interference of this kind; second, that the Pennsylvania courts have strayed into a sphere where the power of initial decision is reserved by federal labor laws to the National Labor Relations Board. I think that, if available, the second or 'pre-emption' ground would plainly be a preferable basis for decision. Because reliance on pre-emption would invoke the authority of a federal statute through the Constitution's Supremacy Clause, it would avoid interpretation of the Constitution itself, which would be necessary if the case were treated under the First Amendment. See, e.g., Zschernig v. Miller, 389 U.S. 429, 443, 444-445, 88 S.Ct. 664, 672-673, 19 L.Ed.2d 683 (opinion of the writer concurring in the result). Dependence on pre-emption would also assure that the Court does not itself disrupt the statutory scheme of labor law established by the Congress, a point to which I shall return.
On the merits, it seems clear from the facts stated by the Court, see ante, at 310-312, and from our past decisions  that the petitioners have a substantial pre-emption claim. However, upon examination of the record I have come reluctantly to the conclusion that this Court is precluded from reaching the merits of that question because of the petitioners' failure to raise any such issue in the Pennsylvania Supreme Court. The rule that in cases coming from state courts this Court may review only those issues which were presented to the state court is not discretionary but jurisdictional. Section 1257 of Title 28, which defines this Court's certiorari jurisdiction, states:
'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 * * * (b)y writ of certiorari, * * * where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of * * * the United States.'
Since the Pennsylvania Supreme Court did not advert in its majority opinion to the pre-emption issue,  it is necessary to determine whether that question was 'specially set up or claimed' within the meaning of § 1257. In deciding that question, it is relevant and usually sufficient to ask whether the petitioners satisfied the state rules governing presentation of issues. See, e.g., Beck v. Washington, 369 U.S. 541, 549-554, 82 S.Ct 955, 959 963, 8 L.Ed.2d 98; Wolfe v. State of North Carolina, 364 U.S. 177, 195, 80 S.Ct. 1482, 1492, 4 L.Ed.2d 1650; John v. Paullin, 231 U.S. 583, 585, 34 S.Ct. 178, 179, 58 L.Ed. 381.  Rule 59 of the Pennsylvania Supreme Court provides:
'The (appellant's) statement of the questions involved must set forth each question separately, in the briefest and most general terms * * *. This rule is to be considered in the highest degree mandatory, admitting no exception; ordinarily no point will be considered which is not thus set forth in or necessarily suggested by the statement of questions involved.'
The Pennsylvania Supreme Court has consistently held that it will not consider points not presented in the manner prescribed by this rule, and that such points are regarded as abandoned or waived.  In this case, the petitioners' statement of questions involved did not refer to the possibility of federal pre-emption,  and of course the Pennsylvania Supreme Court's majority opinion did not mention it either. A similar rule of the Washington Supreme Court was involved in Beck v. Washington, supra, and we held that when a defendant has failed to comply with such a rule 'the argument cannot be entertained here under an unbroken line of precedent. E.g., Ferguson v. State of Georgia, 365 U.S. 570, 572, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961); Capital City Dairy Co. v. State of Ohio, 183 U.S. 238, 248, 22 S.Ct. 120, 46 L.Ed. 171 (1902).' 369 U.S., at 553-554, 82 S.Ct. at 962.  I am therefore led to conclude that we have no jurisdiction to consider the question of pre-emption. 
Turning to the First Amendment question, I believe that in the circumstances it is not an appropriate one for this Court to decide. This controversy arose in the course of a labor union's efforts to achieve labor goals by informational picketing. Although no pre-emption question is properly before us, I do not think that we can take notice that this is an area in which Congress has enacted detailed legislation, see e.g., 29 U.S.C. § 158(b)(7)(C), and has set up an administrative agency to resolve such disputes in the first instance. The reason why it was deemed necessary to fashion the doctrine of pre-emption under the federal labor laws was that it would be intolerably disruptive if this statutory scheme were interpreted differently by state and federal courts. See, e.g., Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228; San Diego Bldg. Trades Council, Millmen's Union Local 2020 v. Garmon, 359 U.S. 236, 242-245, 79 S.Ct. 773, 778 780, 3 L.Ed.2d 775. It seems to me that a similar objection applies to this Court's resolution of such disputes by resort to the Constitution. For the establishment by this Court of a rigid constitutional rule in a field where Congress has attempted to strike a delicate balance between competing economic forces, and in circumstances where we cannot know how the controversy be settled by Congress' chosen instrument, may also have a considerable disruptive effect. I therefore believe that we should exercise our discretion not to reach the First Amendment issue, and that we should dismiss the writ as improvidently granted. Such a disposition would not be unfair to the petitioners, since the failure to bring the pre-emption question properly before us was their own.
^1 See, e.g., Local No. 438 Construction & General Laborers' Union v. Curry, 371 U.S. 542, 546-548, 83 S.Ct. 531, 534-536, 9 L.Ed.2d 514; Hotel Employees Union, Local No. 255 v. Sax Enterprises, Inc., 358 U.S. 270, 79 S.Ct. 273, 3 L.Ed.2d 289; Youngdahl v. Rainfair Union, Inc., 355 U.S. 131, 139, 78 S.Ct. 206, 211, 2 L.Ed.2d 151; NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112-114, 76 S.Ct. 679, 684-685, 100 L.Ed. 975; NLRB v. Stowe Spinning Co., 336 U.S. 226, 229-232, 69 S.Ct. 541, 542-544, 93 L.Ed. 638; cf. Amalgamated Meat Cutters and Butcher Workmen of North America v. Fairlawn Meats, Inc., 353 U.S. 20, 24-25, 77 S.Ct. 604, 606, 1 L.Ed.2d 613. See also Marshall Field & Co., 98 N.L.R.B. 88, 93, enforced as modified sub nom. Marshall Field & Co. v. NLRB, 7 Cir., 200 F.2d 375, 380.
^2 Where the highest state court has actually ruled on a federal question, this Court's concern with the proper raising of the question in the state court disappears. See, e.g., Raley v. State of Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344; Whitney v. People of State of California, 274 U.S. 357, 360 361, 47 S.Ct. 641, 642-643, 71 L.Ed. 1095; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134, 34 S.Ct. 874, 877, 58 L.Ed. 1245.
^3 The only circumstances in which a federal claim will be entertained despite the petitioners' failure to raise it below in the prescribed manner are when the State's rules do not afford a reasonable opportunity for a hearing on the federal issue, see, e.g., Central Union Tel. Co. v. City of Edwardsville, 269 U.S. 190, 194-195, 46 S.Ct. 90, 91, 70 L.Ed. 229, or are applied in a discriminatory fashion to evade the federal claim, see, e.g., Hartford Life Ins. Co. v. Johnson, 249 U.S. 490, 493, 39 S.Ct. 336, 337, 63 L.Ed. 722. No such allegation is made in this case.
^5 The petitioners stated that the question involved was:
'Did the lower court err in granting a Preliminary Injunction * * * where in a suit in equity by the owner of a shopping center and one of its tenants it is established that the appellant-union peacefully picketed near tenant's building within the confines of said shopping center; that no picketing efforts were directed toward the shopping center or other tenants; that picketing efforts were merely to inform the public of the labor dispute?'
^6 See also Wolfe v. State of North Carolina, 364 U.S. 177, 195, 80 S.Ct. 1482, 1492, 4 L.Ed.2d 1650; Parker v. People of State of Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886; CIO v. McAdory, 325 U.S. 472, 477, 65 S.Ct. 1395, 1398, 89 L.Ed. 1741.
^7 The petitioners contend that this Court has jurisdiction to consider the pre-emption issue despite the petitioners' failure to raise it below, because the question is one of 'subject matter jurisdiction.' Although some implied support for this proposition may be found in Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 122-123, 68 S.Ct. 426, 428-429, 92 L.Ed. 580, I am unable to perceive how the nature of the federal question involved can affect the specific limitation on our jurisdiction contained in 28 U.S.C. § 1257.