186
Ginsburg, J., dissenting
which the parties are of diverse citizenship and in any case in which a Fourteenth Amendment plea can be made.
The Court insists that there is no escape from this erosion of state-court authority. Its explanation is less than compelling. The Court describes as the alternative "ICS' proposed approach." See ante, at 167. That approach, according to the Court, would have us determine first "whether [ICS's] state claims constitute 'civil actions' within a district court's 'original jurisdiction.' " Ibid. The Court then demolishes the supposed approach by observing that it "would effectively read the supplemental jurisdiction statute out of the books." Ibid.; see also ante, at 167-169.
I do not find in ICS's brief the approach the Court constructs, then destructs. Instead, the argument I do find, see Brief for Respondents 21-24, runs as follows. Chicago has tried to persuade the Court that ICS's "Complaints for Administrative Review are no different than civil rights actions." Id., at 21. See Notice of Removal for Petitioner in No. 91 C 1587 (ND Ill.), App. 15 ("it appears from the face of plaintiffs' complaint that this is a civil rights complaint"). ICS acknowledged that it might have chosen to bypass onthe-record administrative review in state court, invoking federal jurisdiction under § 1983 instead, without exhausting state remedies. Brief for Respondents 22-24. Had ICS done so, review would have been "plenary in its scope" and would not have been "confined by the administrative record." Id., at 24. But ICS did not take that path. It proceeded under the Illinois Administrative Review Law seeking resolution of both state-law and federal constitutional issues "in the context of on-the-record administrative review." Id., at 22. The distinction between the appellate review it sought and the first instance action it did not bring "is crucial," ICS argued. Ibid.
In sum, from start to finish, ICS sought accurately to portray the Seventh Circuit's resistance to "federaliz[ing]," without explicit congressional instruction to do so, "garden-
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