AuthorSmith, Fred O., Jr.
PositionThe Nature of the Federal Equity Power

INTRODUCTION 2096 I. RESTRAINING JUDICIAL OBLIGATIONS 2100 A. Obligations 2101 B. Restraint 2104 II. YOUNGER's BALANCE 2104 A. Interference Requires Interfering 2105 B. Adequate Underlying Proceeding 2106 C. Exceptions to Abate Irreparable Harm 2106 D. Exhaustion 2108 III. SAFEGUARDS ON TRIAL 2108 A. Younger's Safeguards in Action 2109 B. Younger's Safeguards Cracking? 2111 CONCLUSION 2114 INTRODUCTION

The majestic, enigmatic phrase "Our Federalism" is a consistent refrain in the world of constitutional law and federal jurisdiction. (1) There is less written, however, about the case that gave birth to this phrase, and the brand of abstention that opinion announced. Under Younger v. Harris--and resultant doctrine of Younger abstention--federal courts may not disrupt an ongoing state criminal proceeding by means of an injunction or declaratory judgment if that state proceeding provides an adequate opportunity for the aggrieved party to raise federal constitutional objections. (2)

This doctrine reconciles two dueling concepts that animate federal courts: obligations and restraint. Dating back to the early nineteenth century, federal courts have long insisted that they have an obligation to entertain federal cases within their jurisdiction, (3) and to provide federal equitable remedies that abate irreparable harm. (4) Further, during the Reconstruction era, Congress extended those obligations to settings in which state and local actors violate federal rights. (5) On the other hand, federal courts are also mindful of comity--the idea that federal courts should show due respect toward, and avoid unnecessary friction with, the states. (6) As the Reconstruction Amendments from the nineteenth century look hold during the twentieth century, (7) the role of federal courts substantially grew, an expansion that was tempered by comity-informed restraint.

Younger abstention balances these competing considerations. The doctrine ideally preserves federal courts' ability to prevent irreparable harm, while providing space for autonomous state courts to carry out their traditional role in the realm of criminal justice. This Essay identifies four central features of the Younger doctrine that maintain this balance. By protecting these features, we can ensure that Younger remains a doctrine of equitable restraint, instead of inequitable abdication.

First, the Supreme Court has narrowly construed what it means to interfere with an ongoing proceeding. (8) Not all federal legal proceedings that run parallel to a criminal proceeding should be classified as "interference." Second, the Court does not stay its hand when an underlying proceeding fails to provide adequate opportunity to raise federal claims. (9) Third, the Court has constructed a set of related exceptions to Younger to ensure that federal courts do not abdicate their role in abating irreparable harm. (10) Fourth, the Court has rejected a general exhaustion requirement in [section] 1983 suits, except when a trial and appeal form the same unitary process." Put differently, a federal plaintiff need not avail oneself of every available state proceeding. She has a choice of a federal or state forum. Preserving this choice is crucial to ensuring that restraint does not morph into total abdication.

There is a pressing need to reaffirm these four tenets in light of recent lower court developments that have the potential to undermine the Supreme Court's careful balance.

In an article published four years ago, Abstention in the Time of Ferguson, I wrote about a series of recent cases challenging state and local systems that criminalize poverty. This Essay offers something of a descriptive update. In the past several years, federal appellate courts have rejected Younger defenses when plaintiffs have challenged criminal justice processes that effectively incarcerate indigent persons who cannot afford bail, fines, or fees. For example, federal courts in the Fifth, (12) Ninth, (13) and Eleventh (14) Circuits have rejected the application of Younger to cases challenging rigid bail systems--that is, systems that impose bail on indigent persons in pretrial detention without regard to their ability to pay. These cases broke no doctrinal new ground. They are consistent with the Supreme Court's admonitions against applying Younger when a federal remedy would not interrupt an ongoing proceeding, or where there is no adequate opportunity to raise a federal constitutional objection in the underlying state proceeding.

This doctrinal trend is showing signs of cracking, however. In January 2022, the Fifth Circuit issued an en banc opinion in a case challenging a rigid bail system in Dallas. (15) That court expressed that in a future proceeding, it wished to take "a fresh look at Younger." (16) The Fifth Circuit observed that in that future proceeding, it would "have authority to re-evaluate [its] own precedent." (17)

The developments have been even more ominous in the Eighth Circuit, a court that the Supreme Court unanimously overturned less than a decade ago for applying Younger too broadly. (18) For context, in the 2013 case of Sprint v. Jacobs, the Supreme Court ruled that the Eighth Circuit imposed Younger abstention on civil administrative proceedings in which that doctrine did not apply. (19) The Supreme Court explained that Younger abstention should not sprawl beyond a narrow series of settings. (20) In explaining these limitations, the Court reasoned: "Federal courts, it was early and famously said, have 'no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.'... Jurisdiction existing, this Court has cautioned, a federal court's 'obligation' to hear and decide a case is 'virtually unflagging."' (21)

In the years that have followed, the Eighth Circuit has continued to apply Younger in ways that outpace Supreme Court doctrine. In 2018, for example, in Oglala Sioux Tribe v. Fleming, the Eighth Circuit dismissed a suit by Native American parents who claimed that their children were being routinely taken from their custody without adequate due process. (22) Relying on Younger, the Court reasoned that even if there was no adequate opportunity to raise the federal constitutional objections in the underlying state proceedings, the parents could file a mandamus action in state court. (23) This outcome is difficult to reconcile with the Supreme Court's rejection of an exhaustion requirement in [section] 1983 cases. (24)

More recently, in the 2020 case of Dixon v. St. Louis, the Eighth Circuit vacated a federal district court's injunction that prohibited the imposition of a rigid bail system on indigent defendants without regard to their ability to pay. (25) It concluded that the district court had insufficiently weighed issues of comity, as well as subsequent corrective developments in the Missouri courts. (26) Among other cases, the Dixon court cited the Jim Crow era case of Railroad Commission of Texas v. Pullman Co., in which the Supreme Court concluded that it should refrain from deciding whether racially segregated railcars in Texas violated the Equal Protection Clause, given that there was a potential state-law basis to resolve the case. (27) On remand in Dixon, the federal district court declined to reinstate the injunction, concluding that it was moot in light of Missouri's policies aimed at correcting the violations. (28) And while that court ruled on mootness grounds, it also appealed to comity. Citing Eighth Circuit precedent, it explained that the "principle of comity takes on special force when federal courts are asked to decide how state courts should conduct their business." (29) "The era of micromanagement of government functions by the federal courts is over." (30) The Supreme Court's extant Younger abstention jurisprudence already balances these important comity considerations with federal courts' obligations: to entertain cases within their jurisdiction, to uphold the republican commitments of the Fourteenth Amendment, and to prevent irreparable harm. These recent developments in the Fifth and Eighth Circuits portend a world in which federal courts superimpose an additional comity-infused "mood" of deference on top of this careful balance. (31) And while deference has its place, it should not come at the expense of the four components of Younger that allow federal courts to meet their obligations to intervene in federal constitutional illegalities when necessary.


    A classic debate in federal courts scholarship is the extent to which a federal court can decline to exercise jurisdiction over a case that falls within its constitutionally and congressionally prescribed power. On one view, abstaining to exercise jurisdiction over a case can, as Professor Gerald Gunther once put it, amount to "a virulent variety of free-wheeling interventionism." (32) A generation later, Professor Martin Redish wrote that "abstention doctrines amount to such usurpation" of legislative rule, by effectively overturning federal statutes that properly confer jurisdiction. (33) He expressed particular concern about doctrines that presume that "state court adjudication of federal rights against the states is generally to be preferred to federal court adjudication. These 'total abstention' theories would effectively prohibit the federal courts from enforcing federal civil rights laws, in particular section 1983, and from exercising their congressionally-vested jurisdiction to enforce those laws." (34)

    On the other side of this debate, there have been prominent proponents of prudential and discretionary limitations on federal judicial limits. Professor Alexander Bickel famously contended that federal courts could invoke "passive" doctrines like standing and the political question doctrine to avoid invalidating democratically enacted legislation. (35) Instead of upholding or invalidating legislation, federal...

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