Con Law for 1Ls: Cohens v. Virginia Explained

If Martin v. Hunter’s Lessee teaches that the Supreme Court can review state-court decisions on federal questions, then Cohens v. Virginia teaches the next important point:

That review also extends to state criminal cases.

That is why Cohens v. Virginia, 19 U.S. 264 (1821) is such an important case for 1Ls. It reinforces the Supreme Court’s power to review state-court judgments when a federal issue is properly raised—even where a state itself is a party and even where the case is criminal rather than civil.

This post is part of a Con Law for 1Ls series, so the goal is to make the case clear enough for class, cold calls, outlines, and exams.

The One-Sentence Takeaway

Cohens v. Virginia held that the Supreme Court has appellate jurisdiction to review state criminal judgments that raise federal questions, even when the state is a party, although the Court ultimately rejected the defendants’ federal claim on the merits.

That is the cleanest short version.

Why Your Professor Cares About Cohens

Your professor is not assigning Cohens because of lottery tickets. The real reason is that the case helps answer this structural question:

Can a state avoid Supreme Court review simply because it is prosecuting someone under its own criminal law?

Marshall’s answer was no.

If states could insulate their criminal judgments from Supreme Court review whenever a federal defense was raised, then states could become the final interpreters of federal law in a huge category of cases.

That would undermine both:

• federal supremacy, and

• the role of the Supreme Court as final expositor of federal law

So Cohens is really about:

• Supreme Court appellate review

• federal questions in state criminal cases

• Article III judicial power

• and the continued development of national judicial supremacy

The Facts You Actually Need to Know

Here is the short 1L version.

Congress had authorized a lottery for the District of Columbia.

The Cohens brothers sold lottery tickets in Virginia and were convicted under Virginia law for selling lottery tickets in violation of state statute.

Their argument was that they were protected by federal law because Congress had authorized the D.C. lottery.

So they sought Supreme Court review, claiming that the Virginia judgment conflicted with federal law.

Virginia pushed back and argued that the Supreme Court lacked jurisdiction.

That teed up the core question.

The Big Question

The main issue was:

Does the Supreme Court have appellate jurisdiction to review a state criminal conviction when the defendant claims a federal right or federal defense?

Marshall said yes.

That is the part of the case you need to know best.

The Holding

Here is the clean holding:

The Supreme Court may review state-court criminal judgments when the case presents a federal question, even when the state is a party to the case. See Cohens v. Virginia.

But on the merits, the Court held that the federal lottery authorization did not protect the Cohens brothers from Virginia’s criminal law, so Virginia’s judgment was affirmed.

That means this is one of those cases where the jurisdictional ruling is the part everyone remembers, not the merits outcome.

Why Virginia Said There Was No Jurisdiction

Virginia argued, in substance, that the Supreme Court should not be able to review a criminal prosecution brought by a sovereign state.

That argument had a certain political force:

• the case was criminal, not civil;

• the state itself was a party;

• and the judgment came from the state’s own courts.

The concern was that Supreme Court review would diminish state sovereignty.

Marshall rejected that position.

Marshall’s Basic Reasoning

Marshall’s reasoning builds naturally on Martin v. Hunter’s Lessee.

1. Article III extends to all cases arising under federal law

Marshall focused on the constitutional text. Article III extends the judicial power to all cases arising under the Constitution, laws, and treaties of the United States.

That text does not distinguish between:

• civil and criminal cases, or

• cases where a state is a party and cases where it is not.

So if a case presents a federal question, the federal judicial power can reach it. See Cohens.

2. Appellate review is about the nature of the case, not the identity of the parties

Marshall emphasized that the Court’s appellate jurisdiction depends on the presence of a federal issue, not simply on who the litigants are.

That is an important 1L point.

The fact that Virginia was a party did not make the case unreviewable. What mattered was that the defendants claimed a right under federal law.

3. Federal law must remain uniform and supreme

Like Justice Story in Martin, Marshall stressed the need for national uniformity.

If each state’s criminal courts had the final word on federal defenses, federal law would mean different things in different states.

That would make supremacy meaningless in practice.

4. The Court is not attacking the states by exercising review

Marshall presents Supreme Court review not as hostility toward the states, but as a structural requirement of the Constitution.

The Court is not saying state judges are unimportant. It is saying that in cases involving federal law, there must be a final national tribunal.

That tribunal is the U.S. Supreme Court.

The Key Rule in 1L Terms

Here is the exam-friendly version:

The Supreme Court has appellate jurisdiction over state-court judgments, including criminal judgments, when the case presents a federal question.

That is the doctrinal core of Cohens.

If you want a slightly fuller rule:

Article III extends the federal judicial power to all cases arising under federal law, and that includes state criminal cases in which a federal right, immunity, or defense is asserted.

That is a strong outline version.

What Cohens Adds to Martin

A lot of 1Ls initially think Cohens is just repetitive of Martin. It is not.

Martin said:

The Supreme Court can review state-court decisions on federal questions.

Cohens adds:

That remains true even when:

• the case is criminal, and

• the state itself is a party.

That is why Cohens matters. It closes an obvious gap that states might otherwise have used to resist federal review.

The Merits: Why the Cohens Still Lost

Even though the Court held it had jurisdiction, the Cohens brothers still lost.

The Court concluded that Congress had not actually granted them a federal right to sell lottery tickets in Virginia free from state regulation.

So the federal issue was enough to give the Court jurisdiction, but not enough to win on the merits. See Cohens.

That is another good 1L lesson:

Jurisdiction and merits are separate questions.

A court can have full power to hear a case and still rule against the party invoking federal law.

Why This Case Matters Structurally

Cohens is really about preserving the constitutional structure created in earlier cases.

Without Cohens, a state could have argued:

“Fine, maybe the Supreme Court can review state civil judgments on federal law—but not our criminal prosecutions.”

Marshall refused to allow that distinction.

If states could make final federal law simply by packaging disputes as criminal prosecutions, federal supremacy would be easy to evade.

So Cohens helps ensure that federal law remains supreme across the full range of litigation, not just in civil cases.

The Cold-Call Version

If your professor asks, “What is Cohens v. Virginia about?” you can say:

Cohens v. Virginia held that the Supreme Court can review state criminal convictions when a federal issue is raised, even if the state is a party, because Article III extends to all cases arising under federal law. The Court then rejected the defendants’ federal claim on the merits.

That is a strong cold-call answer.

Common 1L Mistakes About Cohens

Mistake #1: Thinking the case is mainly about lotteries

The lottery is just the vehicle. The real issue is Supreme Court review of state criminal judgments raising federal questions.

Mistake #2: Forgetting that the defendants lost

They won on jurisdiction, but lost on the merits.

Mistake #3: Thinking criminal cases are somehow outside Article III review

Marshall rejects that distinction. The presence of a federal question is what matters.

Mistake #4: Confusing jurisdiction with supremacy alone

Supremacy matters, but this is also an Article III appellate jurisdiction case.

Quick IRAC for Your Outline

Issue

Can the Supreme Court review a state criminal conviction when the defendant argues that the conviction violates federal law?

Rule

Article III extends the federal judicial power to all cases arising under the Constitution, laws, and treaties of the United States, including state criminal cases that present a federal question. See Cohens.

Application

The Cohens brothers asserted a federal right based on congressional authorization of the D.C. lottery. That was enough to create a federal question and support Supreme Court appellate review, even though Virginia was prosecuting the case as a criminal matter.

Conclusion

The Supreme Court had jurisdiction, but the defendants’ federal argument failed on the merits.

What to Put in Your Case Brief

If you are briefing Cohens for class, include:

• Facts: Virginia criminal conviction for selling lottery tickets; defendants claimed protection under federal law

• Issue: can the Supreme Court review a state criminal judgment raising a federal question?

• Holding: yes

• Merits result: defendants lose

• Reasoning: Article III extends to all federal-question cases, including criminal cases against a state

• Key doctrine: Supreme Court appellate review over state criminal judgments involving federal issues

That is enough for most 1L purposes.

Why Cohens Still Matters Today

Cohens remains important because federal defenses are still raised in state courts all the time.

The broader principle—that state courts are not the final word on federal law in cases within Supreme Court review—remains part of the constitutional structure.

The Court still cites Cohens for propositions about constitutional interpretation and the scope of judicial power. See, for example, United States v. Rahimi, 602 U.S. 680 (2024), citing Cohens on the importance of reading constitutional language in context.

How Cohens Fits with Marbury, McCulloch, and Martin

These cases fit together very neatly:

• Marbury: the Court can interpret the Constitution

• McCulloch: federal power is broad within its sphere

• Martin: the Supreme Court can review state-court federal-question decisions

• Cohens: that review includes state criminal judgments too

That sequence helps build the architecture of federal judicial supremacy.

Final Takeaway for 1Ls

If you remember nothing else, remember this:

Cohens v. Virginia says that states cannot make themselves the final judges of federal law simply by bringing criminal prosecutions in their own courts.

That is why the case matters.

The lottery prosecution was the vehicle.The real subject was the reach of Supreme Court appellate review.

And that is why Cohens v. Virginia, 19 U.S. 264 (1821) is a core case every 1L should know.