1 see U.S. Const., art. III, sec. 1.Google Scholar

2 See Sheldon v. Sill, 49 U.S. 441 (1850). Whether there are any limits to Congress's power to restrict the jurisdiction of the lower federal courts is one of the classic topics for debate in the field of federal courts law. Scholars tend to consider whether Congress could use its power over federal court jurisdiction to achieve substantive ends. For example, could Congress remove cases involving abortion rights or school desegregation? Since Sheldon v. Sill dealt with a statute that removed the sort of cases that entail no federal interest and would only burden the federal courts, one can minimize its broad statements and argue for a different constitutional interpretation for congressional cutbacks designed specifically to undercut the judicial role in enforcing rights. Scholarly theories abound in this area. See, e.g., Erwin Chemerinsky, Federal Jurisdiction 186–202 (2d ed. Boston: Little, Brown, 1994); Akhil Reed Amar, “A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction,” 65 B.U.L. Rev. 205 (1985); Barry Friedman, “A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction,” 85 Nw. U.L. Rev. 1 (1990); Gerald Gunther, “Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate,” 36 Stan. L. Rev. 895 (1984); H. M. Hart, “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic,” 66 Harv. L. Rev. 1362 (1953); Martin H. Redish & Curtis E. Woods, “Congressional Power to Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis,” 124 U. Pa. L. Rev. 45 (1975); Ronald Rotunda, “Congressional Power to Restrict the Jurisdiction of the Lower Federal Courts and the Problem of School Busing,” 64 Geo. L.J. 839 (1976); Lawrence Sager, Foreword: “Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts,” 95 Harv. L. Rev. 17 (1981); Mark Tushnet & Jennifer Jaff, “Why the Debate over Congress' Power to Restrict the Jurisdiction of the Federal Courts Is Unending,” 72 Geo. L.J. 1311 (1984). A key reason why this topic provides a fertile field for scholarly debate is that while members of Congress often propose this kind of jurisdictional cutback, Congress as a whole has rejected this means of attacking politically unpopular court decisions.Google Scholar

3 90 Harv. L. Rev. 1105 (1977).Google Scholar

4 Neuborne wrote that federal judges tended to be better than state judges, because fewer slots needed to be filled and the pay, prestige, and working conditions tend to be higher. Better judges, he wrote, are particularly important to those who assert constitutional rights because they must challenge popularly supported laws and policies and must often make arguments that are difficult to comprehend. He conceded, however, that the more competent judge may be more likely to constrain rights, particularly when the Supreme Court has been constraining rights. So the advantage can turn to disadvantage. Neuborne contended that federal judges have a “tradition of constitutional enforcement” that gives them an “elan and sense of mission” and makes them “more likely to enforce federal rights vigorously” than state trial judges. He saw the federal judges as having a closer tie to the U.S. Supreme Court than state judges that makes them more likely to go beyond “clearly established law” and “anticipate” future Supreme court expansions of federal rights. But he also recognized that this sensitivity to the Supreme Court can cut against the rights claimant during periods when the Court is not expanding rights. He ascribed an “ivory cower syndrome” to federal judges, and theorized that their distance from the “distasteful and troubling fact patterns” that arise in the criminal, family, and other civil cases handled regularly by state judges increases the likelihood that they will “liberally and assiduously perform their function of enunciating constitutional norms.” He also predicted that their membership in a “successful, homogeneous socioeducational class” would make them more sensitive to rights. They are, he assumed, more likely to believe in the “libertarian tradition” that underlies constitutional claims and less likely to trust the defendant state officials who come from a social class that does not share that tradition. These predictions about federal court behavior may come true, but it is by no means certain. Distance and upper-class status might also produce restraint and deference to the choices of the majority, if not apathy or insensitivity to rights. Moreover, the “libertarian tradition” supposedly popular with ivory tower successful judges may favor the First Amendment rights pressed by Neuborne's organization (the ACLU), but it seems questionable whether this generous attitude will extend to other sorts of constitutional rights, such as those affecting poor and dependent persons.Google Scholar

5 See Robert Hughes, Culture of Complaint: The Fraying of America (New York: Oxford University Press, 1993).Google Scholar

6 See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chicago: University of Chicago Press, 1991).Google Scholar

7 “The individual” is a fascinating abstraction. This favorite of the Warren Court devotee has also changed over the years. The image of the victim of racial discrimination or the mistreated accused may keep us from seeing that “the individual” seeking relief in federal court may be the white male challenging affirmative action as reverse discrimination, the right-to-life ideologue attacking the funding of abortion for the poor, or the abusive parent attempting to undermine a state's efforts to protect children. In short, the Government vs. Individual concept inaccurately implies a god guys/bad guys scenario. If the myth of the rights-enforcing federal judge is true, a too early examination of an issue by the federal courts may give excessive weight to the concerns plaintiffs package as rights and may undervalue the state's policies—policies that may greatly benefit individuals. The state court's presumable affiliation with the policies of state government could aid in the full development of the issues, making the state's potentially salutary programs appear in a sympathetic light. Since the state court's decisions are subject in the end to review by the U.S. Supreme Court, worries that state courts will undervalue rights may be overstated.Google Scholar

8 See, e.g., Akhil Reed Amar, “Parity as a Constitutional Question,” 71 B.U.L. Rev. 645 (1991); Erwin Chemerinsky, “Ending the Parity Debate,” 71 B.U.L. Rev. 593 (1991); Susan Herman, “Why Parity Matters,” 71 B.U.L. Rev. 651 (1991); Michael Wells, “Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts,” 71 B.U.L. Rev. 609 (1991).Google Scholar

9 See at 12, referring to Michael E. Solimine & James L. Walker, “Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity,” 10 Hastings Const. L.Q. 213 (1983), which found no “pattern of state court hostility to federal claims,” Yackle writes; “the flaws in that work are everywhere apparent and, in the end, the study has been demolished—along with other reports that rely on simplistic opinion polls and Supreme Court reversal rates.”Google Scholar

10 461 U.S. 95 (1983).Google Scholar

11 For example, he begins his chapter on habeas corpus with a story dating back to 1919, describing extraordinarily abusive and unfair state proceedings against a group of African American tenant farmers whose attempt to organize for the purpose of lowering rents prompted a “gang of armed white men employed by the landowners” to attack them. Yackle at 151–54 (describing Moore v. Dempsey, 261 U.S. 86 (1923)). After “as many as two whites and two hundred blacks were killed,” five black men were arrested and charged with murder. These five had only one lawyer appointed to defend them. The lawyer did not file any motions or call any witnesses, and the trial lasted only 45 minutes. The all-white jury reached a guilty verdict, complete with five death sentences, in only 5 minutes. The Arkansas Supreme Court rejected the appeals. In this case, access to federal court on habeas provided an obviously necessary safeguard for constitutional rights. While it is clear that even the most conservative modern-day formulations of habeas doctrine would still allow these petitioners to gain access to federal court, Yackle has chosen this story because of its ability to stir up the kind of passion for habeas corpus that is needed before one can embrace the very broad federal access that he advocates. The introductory story is simply a rhetorical device. Yackle's conservative opponents could employ the same device for their own purposes, by choosing a truly heinous murder and a much more subtle assertion of rights.Google Scholar

For example, in Sawyer v. Smith, 110 S. Ct. 2822 (1990), a man found guilty of murdering a woman in a horrifyingly brutal torture challenged his conviction on the ground that the prosecutor's closing argument erroneously informed the sentencing jury that they were not finally responsible for imposing the death sentence. At the time the state judge permitted the argument, the U.S. Supreme Court had not yet decided the case that held this kind of argument unconstitutional. See Caldwell v. Mississippi, 472 U.S. 320 (1985). In one of a line of conservative decisions dealing with whether a habeas petitioner can assert “new rules” of constitutional law, the Supreme Court denied access to federal court because the state judge had not used an unreasonable interpretation of constitutional law in light of the precedent available at the time. Interestingly enough, the rule the petitioner wanted to enforce through access to federal court had in fact already been recognized by some state courts. Justice Kennedy, writing for the majority, took the opportunity to point out that those state court decisions refuted the notion that state courts do not enforce rights.Google Scholar

12 The fifth Justice, Thomas, who does seem to have been chosen for his strong conservativism, had not served as a judge long enough to have created a substantial record subject to attack, as Judge Bork had. See Timothy M. Phelps & Helen Winternitz, Capitol Games: The Inside Story of Clarence Thomas, Anita Hill, and a Supreme Court Nomination (New York: Harper, Perennial, 1993). Moreover, during his confirmation hearings, Justice Thomas, like Kennedy, Souter, Ginsburg, and Breyer, meticulously avoided discussing legal issues and presented himself as a thoughtful, technically competent jurist. Judge Bork, by contrast, actively engaged with the Senate Judiciary Committee on specific issues. In any event, Justice Thomas did attract a good deal of opposition before his confirmation. Id. Google Scholar

13 One very politically oriented commentator, disparaging Justice Kennedy's centrism, wrote, “Kennedy proved reliable only in his instinct for the winning side,” noting the important cases of United States v. Lopez, 115 S. Ct. 1624 (1995) (voting on the side of state power in a commerce clause case) and United States Term Limits v. Thornton, 115 S. Ct. 1842 (1995) (voting against state power to impose term limits on members of commerce). Jeremy Rabkin, “Common Sense v. The Court,”Am. Spectator, Sept. 1995, at 26. But Kennedy, as the fifth vote, would have won whichever position he had taken. Far from being the sort of political animal who seeks victory without regard for principle, Kennedy is simply a judicial moderate, repelled, it would seem, by both political extremes, uninterested in gaining a reputation for “ideological consistency,” see id. Google Scholar

14 See Younger v. Harris, 401 U.S. 37 (1971).Google Scholar

15 See Dombrowski v. Pfister, 380 U.S. 479 (1965).Google Scholar

16 442 U.S. 415 (1979).Google Scholar

17 26 U.S.C. § 2254(a). Like 42 U.S.C. § 1983, the statute relied upon in Dombrowski and Sims, the habeas statute dates back to the Reconstruction era.Google Scholar

18 See Brown v. Allen, 344 U.S. 443 (1953).Google Scholar

19 See Fay v. Noia, 372 U.S. 391 (1963).Google Scholar

20 See Stone v. Powell, 428 U.S. 465 (1976). In a key example of the Court's tendency toward moderation, see text accompanying notes 24-25, has resisted attempts to extend this harsher standard beyond the Fourth Amendment. See Withrow v. Williams, 113 S. Ct. 1745 (1993).Google Scholar

21 See Wainwright v. Sykes, 433 U.S. 72 (1977).CrossRefGoogle Scholar

22 The Second Circuit case granting habeas relief to Noia's codefendants, United States ex. rel. Caminito v. Murphy, 222 F.2d 698 (1955), cert. denied, 350 U.S. 896, provides the best description of the methods used by the police. Judge Jerome Frank described the police methods holding the suspects incommunicado and interrogating them for 27 hours as “loathsome,”“satanic,” and “torture.” Reflecting the spirit of his own times, Judge Frank criticized these police practices by likening them to the behavior of “totalitarian regimes”“behind the Iron Curtain” and urged Americans concerned about McCarthy Era “inroads on the constitutional privileges of persons questioned about subversive activities” to become outraged by the routine “police brutality” employed in less conspicuous cases.Google Scholar

23 Even Yackle would bar state criminal defendants from routine attempts to use the federal courts in this way. He would, however, limit the Younger abstention doctrine to criminal cases. He disapproves of the many cases that extend abstention to other kinds of state court proceedings. See, e.g., Moore v. Sims, 442 U.S. 415 (1979). He bases this distinction on the availability of habeas corpus to rights claimants to those who have gone through criminal proceedings; no similar later access exists for those who face civil proceedings. His support for Younger abstention in the area of criminal cases is offset by his demand for very broad access to federal courts at the habeas stage.Google Scholar

24 In using these words as favorite pejoratives (see at 40, 139, 140, 154), Yackle expresses his antagonism to the Legal Process analysis exemplified by Herbert Wechsler's demand for “neutral principles.” See Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harv. L. Rev. 1 (1959). See also infra text accompanying notes 30–31.Google Scholar

25 For example, in its 1994 Term, the Supreme Court handed down a series of cases dealing with race-based legislative redistricting. Journalists discussed the cases decided on the merits but said little about the one case in which the Court found that the plaintiffs lacked standing. See L. Greenhouse, “On Voting Rights, Court Faces a Tangled Web,”N.Y. Time, 14 July 1995, p. A1, col. 1 (referring to the standing case as “a companion case from Louisiana that the Court dismissed on technical grounds”); Jim Yardley, “Redistricting: The Ruling and Its Impact,”Atlanta Constitution, 30 June 1995, p. 6A (“the court Thursday dismissed a lawsuit against Louisiana's majority black 4th District on a technicality”); William M. Welch, “South's Politics May Change,”USA Today, 30 June 1995, p. 8A (“the court set aside the Louisiana case on technical grounds”).Google Scholar

26 Key federal jurisdiction statutes date from this period. General federal question jurisdiction became available. See 28 U.S.C. § 1331. The federal courts were authorized to entertain petitions for writs of habeas corpus from prisoners convicted in the state court system. See 28 U.S.C. § 2254. And a federal cause of action was created for the deprivation of federal rights under color of state law. See 42 U.S.C. § 1983. Congress also explicitly provided federal jurisdiction for § 1983 claims. See 42 U.S.C. § 1343.Google Scholar

27 See at 20-24 (describing Lochner era).Google Scholar

28 As Barry Friedman points out in his review of Yackle's book, “Back to the Future: Federal Jurisdiction in the Next Century,” 12 Const. Comm. 441 (1995), some of Yackle's proposals would maximize access to federal courts for issues of federal law generally, thus extending federal jurisdiction to a vast quantity of cases that have nothing to do with constitutional rights, such as tort cases that rely on a federal safety standard. As Friedman points out, crowding the federal courts with cases like these should have a negative effect on federal rights claimants hoping to find favorable conditions in federal court. How much time will a federal judge spend looking at habeas petitions and pro se § 1983 claims as increasing numbers of tort plaintiffs file their claims in federal court?Google Scholar

29 See, e.g., Lochner v. New York, 198 U.S. 45 (1905).Google Scholar

30 It should not escape our notice that extremely effective conservative opinions written by Justices Scalia and Thomas rely on the impressively powerful tools of Formalism. Moreover, the Warren Court itself, particularly Justice Brennan, couched many path-breaking liberal opinions in Formalist terms. Of course, we can look on from the sidelines and comment on the political nature of these decisions, but for an actor in the system, ready to play politics, talking about politics will in all likelihood weaken one's arguments.Google Scholar

31 At 32. Yackle, like many others, takes Herbert Wechsler to task for his Legal Process-based questions about Brown v. Board of Education. Wechsler, 73 Harv. L. Rev., worried that the decision rested on the Court's beliefs about the immorality of segregation, rather than on the “neutral principles” required by his process model of analysis. Yackle writes: “It is astonishing that Herbert Wechsler, a man with a solid civil rights record, had such difficulty fitting the Segregation Cases into some formulation of the process model. For if Legal Process could not offer the Supreme Court a defensible justification for invalidating state-sponsored race discrimination, there was something very wrong with that theory” (at 32). Again, the problem does not seem to lie in the method itself, for the method is quite versatile, as indeed, the academic response to Wechsler's request for an explanation amply demonstrated. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980).Google Scholar

32 He does preserve Younger abstention, in a newly narrowed form, which would require a state court criminal defendant to present federal issues within the ongoing state court proceeding. Access to federal court, in the form of very generous habeas jurisdiction, would become possible only after conviction in state court (at 147–48).Google Scholar

33 A severe new approach to restricting habeas corpus was introduced in the Senate as part of the antiterrorism legislation that gained tremendous political momentum after the Oklahoma City bombing. See Naftali Bendavid, “Habeas Bid Boosted by Bombing; GOP Ties Reform to Anti-Terrorism Bill,”Legal Times, 8 May 1995, p. 1. The bill would routinely limit petitioners facing death sentences in several ways. First, with some exceptions, only one petition would be permitted, and that petition would need to be filed to within one year. Second, the habeas petitioner would need to show that the state trial court acted “unreasonably” or against “established federal law.”Id. Conservatives in Congress had been trying for years to constrain habeas corpus, even as liberals have introduced bills aimed at overturning Supreme Court precedent limiting habeas. The recent election, along with public antiterrorism fervor, has carried the conservative agenda much closer to success. Id. Google Scholar

34 See Monroe v. Pape, 365 U.S. 167 (1961). In Monroe, the Court revived the Civil Rights Act of 1871, 42 U.S.C. § 1983, designed to deal with conditions following the Civil War, for use in modem day cases. Justice Douglas, writing for the majority, and the dissenting Justice Frankfurter disagreed about the applicability of the old statute. Justice Douglas wrote: “Although the legislation was enacted because of the conditions that existed in the South at that time, it is cast in general language and is as applicable to Illinois as it is to the States whose names were mentioned over and over again in the debates.” Justice Frankfurter quoted Zechariah Chafee, Jr.: “It is very queer to try to protect human rights in the middle of the Twentieth Century by a left-over from the days of General Grant.”Google Scholar