The future of parity.

• Author: Solimine, Michael E.

INTRODUCTION

In the dual enforcement of constitutional norms in the United States, state governmental institutions, and particularly state courts, are entrusted with adjudicating federal constitutional and statutory rights. That dual regime, in turn, gives rise to the issue of "parity," the concept that state judges are presumed at some level to be as "willing and capable of giving claims" of federal rights a fair hearing as would federal judges. (1) I will address the future of parity by first considering its past.

To do that, I will reexamine an article by the late Paul M. Bator, presented at a symposium in January of 1981 at William and Mary School of Law, and published in its Law Review. (2) Bator was a prominent law professor at Harvard and the University of Chicago, (3) best known for being a co-author of the influential federal courts case book, Hart & Wechsler's the Federal Courts and the Federal System. (4) As we shall see, Bator gave, in my view, extremely thoughtful and prescient consideration to a host of issues raised by parity, and to other issues subsumed by the present conference. (5) Before turning to some of those issues in detail, I will briefly summarize his article.

Bator began by considering first principles. Why, he asked, "do the state courts have a role" at all in adjudicating federal constitutional rights? (6) At first blush, it might seem that federal courts should be the primary (or perhaps exclusive) fora for the litigation of federal rights, whereas state courts should perform a similar role for state law. (7) The answer is that "an enormous tradition of federalistic rhetoric," from the framing of the Constitution to present-day Supreme Court doctrine, supports the "legitimacy and desirability" of state courts having a significant role in explicating federal constitutional norms. (8) To be sure, as Bator immediately acknowledged, "there is another rhetorical tradition, running directly to the contrary," (9) which would sharply limit or even eliminate that role. Bator further conceded that the "conventional arguments for federalism,"--"the benefits of dispersing powers and of having multiple laboratories of social experimentation"--seem, "at first glance, [of] doubtful" applicability to "the proper role of state judges in deciding issues of federal law." (10)

In sorting out these problems, Bator first turned to the institutional arrangements that, in theory or in practice, would route some or all federal issues from state to federal courts. These avenues would include removing cases from state to federal court; automatically permitting collateral relitigation of state court resolution of issues in federal court (e.g., through habeas corpus); or permitting a state court defendant (or prospective defendant)to seek anticipatory relief of the federal issue in federal court. (11) Each of these devices is permitted, to varying degrees, under current law. Their current use, however, is severely circumscribed, and for good reason, according to Bator. The automatic, or even near-automatic, removal of all civil and criminal proceedings in state courts that raise federal issues would be "obviously unacceptable," because it would add a large number of cases to the federal docket and might hinder cases from being resolved on other grounds. (12) Likewise, automatic collateral relitigation would exact "severe costs," by both adding many cases to federal dockets and undermining "the deterrent and rehabilitative functions of the criminal law" through the denial of finality to criminal convictions. (13) Finally, the anticipatory relief model, even one that ostensibly carves out only the federal issue for federal court resolution, ultimately is "the functional equivalent of removal," and thus shares the infirmities of removal. (14)

None of these arguments demonstrate, Bator said, "that we should never allow" these three options. (15) Instead, all he

tried to show is that there are sufficiently weighty and serious doubts and disadvantages associated with these devices that it is extremely unlikely that anything like automatic or unlimited access to them will, in the foreseeable future, be permitted. Once we see the context, it is clear that claims favoring a federal forum will not and should not exact an unconditional surrender. The federalistic position cannot simply be routed. (16) Neither the federal nor state courts should have a "monopoly" on the "task of defining and enforcing federal constitutional principles." (17) The question will always be where to draw the line, "but line-drawing is the correct enterprise." (18)

In considering where to draw those lines, Bator considered a variety of issues regarding parity, (19) to which I will turn in Part I. He concluded by emphasizing that he was not disparaging "the historic contribution which the federal courts have made to the task of transforming constitutional ideals into reality," and he conceded that "there may be periods when a highly interventionist position [by federal courts supervising state courts] is necessary and justified." (20) Yet, none of this detracts, he said, from his principle point that "state courts will and should continue to play a substantial role in the elaboration of federal constitutional principles." (21)

In the balance of this Article, I consider how Professor Bator's analysis has stood up for over two decades, and what it tells us about the continued study of parity. In Part I, I consider functionalist critiques of parity, the work of law professors and political scientists who, since Bator's article, have empirically studied parity, and the strengths and weaknesses of that literature. Part II of the Article focuses on the prospect of disuniformity in the application of federal constitutional rights by the large number of state courts, and problems associated with the ability of the U.S. Supreme Court and the lower federal courts to monitor that application through the certiorari and habeas corpus process, respectively. Finally, Part III addresses how a variety of prospective changes to state court institutions affect parity. This includes the convergence of civil and criminal procedure in federal and state courts, and possible reforms of judicial selection and election processes in state courts. (22)

1. EMPIRICAL STUDIES OF PARITY

   As has been frequently remarked, parity has both a constitutional and empirical dimension, which can be regarded as "conceptually distinct." (23) The former concerns, among other things, how the framing and text of Article III of the Constitution, and jurisdictional statutes passed by Congress, does or should impact jurisprudential doctrine that variously routes cases to federal or state courts. The latter "asks whether state courts--in fact and on average--are as fair and as competent as federal courts." (24) The two dimensions are of course related; one's view of the realistic abilities of state courts will inevitably color one's normative view of federal courts jurisprudence. Nonetheless, in this Article I focus primarily on the empirical dimension of parity. (25)

   1. The Empirical Literature

      As Bator observed in his article, the "best summary of the functional arguments in favor of federal-court superiority" (26) is Professor Burt Neuborne's oft-cited (27) article, The Myth of Parity. (28) Writing over a quarter-century ago, Neuborne set the parameters of the empirical debate. In brief, Neuborne argued that "three sets of reasons" supported a preference for federal court disposition of federal rights:

      First, the level of technical competence which the federal district court is likely to bring to the legal issues involved generally will be superior to that of a given state trial forum. Stated bluntly, in my experience, federal trial courts tend to be better equipped to analyze complex, often conflicting lines of authority and more likely to produce competently written, persuasive opinions than are state trial courts. Second, there are several factors, unrelated to technical competence--which, lacking a better term, I call a court's psychological set--that render it more likely that an individual with a constitutional claim will succeed in federal district court than in a state trial court. Finally, the federal judiciary's insulation from majoritarian pressures makes federal court structurally preferable to state trial court as a forum in which to challenge powerful local interests. (29) Writing three years after the publication of Neuborne's article, Bator rightly acknowledged the "splendid statement of the case for superior federal court competence" by Neuborne. (30) He expressed skepticism, nonetheless, of the full breadth of many of Neuborne's arguments. He argued that "[i]n many cases the proper comparison is not between the federal courts and the state trial courts, but between the federal courts and the entire hierarchy of state courts." (31) Many state supreme court justices, he continued, are "as well paid and have as much prestige as federal judges," and it was his experience that those he had met were "as expert on issues of federal constitutional laws as are federal judges." (32) Although many state court judges are elected, he felt that at least at the supreme court level, "terms tend to be long enough to assure that at least the grosser threats to judicial independence are absent." (33) As for the superior "psychological set" of federal judges, Bator argued that the argument drew too deeply on a "special historical experience," the lamentable record of some state court judges during the modern civil rights era. (34) Moreover, the "elitism of the federal bench, its distance from much of the daily grind of the administration of justice, its specialization--all of these are advantages, but they are disadvantages too." (35)

      Others have since elaborated on Bator's arguments. For example, James Walker and I have responded to Neuborne in various ways. We agreed that...