Reclaiming the Federal Courts.

• Author: Friedman, Barry

The 1960's and 1970's are gone, and with them that brief period in which a progressive Supreme Court expanded the protections of the Constitution in the face of contrary majority views. Increasingly, scholars question whether this description is even accurate, whether the federal courts did act in a countermajoritarian fashion(1) and whether they were able to or did much to effect social change beyond that accomplished in the political process.(2) But something unique in judicial history did seem to have happened during the era of the Warren Court. For many liberal scholars, this time was Camelot.

Larry Yackle is one of those scholars. In his recent, penetrating book on federal jurisdiction, Yackle plainly yearns for those lost golden days. The problem, as Yackle sees it, is that "[t]he Supreme Court's decisions in recent years have taken far too much decision-making authority away from the federal courts and given it to the courts of the states. In that process, the federal courts have lost the capacity to check the great power of government in American society." Yackle paints the current issue in the law of federal jurisdiction as "a heated ideological debate between those I will dare call `liberals,' who almost always prefer the federal courts in cases in which federal rights must be determined, and those I will call `conservatives,' who typically urge that the state courts be employed." "Lest there be any doubt," he proclaims with apparent pride, "I am a liberal."

Yackle not only yearns for bygone days, he comes with a prescription to return to them. To meet the threat that Yackle sees, "Congress should enact a series of new statutes to reclaim the federal courts for their vital role in this constitutional democracy." While much of his book is a detailed "internal critique" of the rightward trend of federal jurisdiction, each chapter concludes with a specific statutory suggestion to address the criticisms he levels. Some of the legislation Yackle seeks would be new, or would implement reform proposals long ignored by Congress, such as the extension of federal question jurisdiction beyond the bounds of the Mottley wen-pleaded complaint rule.(3) But much of Yackle's legislative agenda quite obviously is designed to reverse the restrictions placed upon the exercise of federal jurisdiction by the Rehnquist Court.

I will have my questions to ask about Yackle's agenda, about where it is he is going, why he wants to go there, and whether his agenda will get him where he wants to go. Despite my questions, however, make no mistake about the value of this book. Reclaiming the Federal Courts is a passionate piece of work by a scholar who cares deeply about the use of the law, and courts, to ease the plight of the victims of government excess. It is popular in these times to worry about the victims of government excess,(4) but the populace seldom seems concerned when government excess threatens individual liberties, particularly when the liberties at stake are those of individuals who "are either unpopular in themselves (for example, the rights of criminal defendants) or are asserted by unpopular people (for example, political dissenters)." In any society that dares to call itself free, these people need champions, and their champions are the guardians of the liberty of all of us. Yackle is one of these champions.

Yackle particularly deserves credit for the mission he accepts, that of unmasking the arcane law of federal jurisdiction to reveal its impact on substantive rights. Yackle leaves to others the "diminution of individual liberty that has attended the coming of the Rehnquist Court." While he addresses the "erosion of federal rights indirectly," his ground is the "[d]eadly dry and confusing doctrines" that we call the law of federal jurisdiction. Yackle cogently attacks this technical body of law with force and vision, making the impact of jurisdictional decisions plain for all to see.

Following an introduction, there are essentially two parts to Yackle's book. There is a first chapter in which Yackle sets the stage, detailing the debate over the relative parity of federal and state courts, and reviewing the history that leads Yackle to conclude we have come to favor a "Legal Process" model of federal jurisdiction. In this chapter, Yackle expresses his evident disdain for what he sees to be the Legal Process argument that litigation in any court is as good as the next. Rather, it is his preference that "federal question cases [] be in federal court." What follows are four chapters treating, in this order, justiciability, federal question jurisdiction, abstention, and habeas corpus. In each chapter Yackle ably describes the doctrinal development, criticizes it, and concludes with a legislative proposal that would open wide the doors of the federal courts. Indeed, no mere proposals are these; Yackle actually has drafted the necessary statutes.

While Yackle's legislative agenda is designed to answer questions about what the law of federal jurisdiction should be, in reality the book raises far more questions than it answers. That, in and of itself, might be a good thing. The questions raised, however, are troubling in a way that extends far beyond this book to the entire endeavor of federal jurisdiction scholarship. Yackle is stuck in a time warp, as are many of the scholars that write in the area of federal jurisdiction. Yackle criticizes the Legal Process methodology, but in a sense he is trapped in it, as are his contemporaries.(5)

The problem finds its root, and all too often its branch, in Hart and Wechsler's seminal federal jurisdiction casebook. As Akhil Amar has observed, the book was out of date almost at the time it was published.(6) Writing before Brown v. Board of Education,(7) and much of the work of the Warren Court, the Hart and Wechsler approach maintains an almost naive belief that state and federal courts are fungible, and a now counter-historical position that state courts are the ultimate guardians of constitutional liberty. That might once have been, and may be again, but as Yackle ably points out, during the Warren era the federal courts were the ones that mattered to civil libertarians, and the differences between state and federal courts often were vast. Thus, Yackle's gripe with Hart and Wechsler is that they assumed "there was nothing to choose between the federal and state courts. There was something to be explored and decided. Hart and Wechsler ducked the really fundamental question."

The disappointment is that Yackle, like many federal jurisdiction scholars, has done little more than decide the parity question in favor of federal courts. Moreover, Yackle seems to do so from within, rather than without, the Legal Process model. Refighting old battles with new (or, for that matter, old) premises may not have much to do with today's landscape. Yackle's book is a thorough repudiation of the current state of the law of federal jurisdiction, but ultimately the book falls short of prescribing what I believe is a pertinent agenda for the future.

I, like Yackle, have an internal and external critique. Initially...