The myth of superiority.

• Author: Rubenstein, William B.
• Position: The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies

Get a group of civil rights lawyers together and there is at least one thing they would agree upon--they prefer to litigate in federal, not state, court.(1) Writing in 1977 from his decade-long experience as a civil liberties litigator, Burt Neuborne codified this sacred tenet in the pages of the Harvard Law Review.(2) In The Myth of Parity, Neuborne opined that federal courts were systematically preferable to state courts as a forum for the protection of federal constitutional rights. Neuborne's claim exceeded the simple proposition that federal judges were more politically liberal during this time period. Rather, he set forth an argument that federal courts were "institutionally preferable to state appellate courts as forums in which to raise federal constitutional claims."(3)

The experience of gay rights litigators in the twenty-two years since Neuborne's thesis was published challenge his assumptions in several interesting ways.(4) Put simply, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. That statement poses two challenges to Neuborne's thesis. First, it implies that the federal courts were never institutionally better situated to protect disfavored claimants and that all Neuborne really experienced in his time as a litigator was a greater representation of liberal judges in the federal courts. This point has intuitive appeal because during much of the succeeding two decades, the federal courts have largely been dominated by conservative Republican appointees.(5) Perhaps Neuborne's preference for federal courts and pro-gay litigators' preference for state courts simply reflect short term trends in the political orientation of these fora. Yet the gay rights experience might suggest something more meaningful: perhaps it reveals institutional advantages of state courts in protecting individual rights that are missing from Neuborne's depiction of these competing fora.(6)

1. THREE PARITY DEBATES

   Since the founding of the Republic, controversy has surrounded the proper role of the federal courts and their relationship to state courts in a federal judicial system.(7) A central concern has been how cases involving federal rights, particularly federal constitutional rights, are allocated between these two judicial systems. Is a federal forum a necessary adjunct for the enforcement of a federal right? Or can state courts be trusted to protect federal rights? The constitution's Madisonian Compromise enables federal issues to be litigated in state courts, while simultaneously authorizing Congress to establish inferior federal courts as a forum for the litigation of federal questions and ensuring that the Supreme Court can have the last word on all determinations of federal law.

   The constitutional structure that permits both state and federal courts to rule on federal issues sets the stage for the parity debate. At the center lies a comparison between the institutional competence of state and federal courts: those who believe federal courts institutionally superior argue, on this basis, for an expansion of federal jurisdiction,(8) while others resist on the grounds that state courts are institutionally comparable to federal fora.(9) The parity debate arises in a variety of doctrinal contexts,(10) and has been especially palpable for the past half-century.(11)

   Dubbing the argument in favor of state court competence "the myth of parity," Burt Neuborne stepped into the debate in 1977 with a ringing and influential(12) endorsement of the superiority of federal fora. Neuborne's federal-forum-preference thesis emanated from his practice experience.(13) But the preference also responded to growing Supreme Court jurisprudence limiting federal habeas corpus review of state criminal convictions. In fashioning that jurisprudence during the 1970s, the post-Warren Court justices relied upon the proposition that state courts are as institutionally capable of protecting federal constitutional rights as are their federal counterparts.(14) Neuborne argued that "three sets of reasons support a preference for a federal trial forum:"(15)

   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.(16) Given this understanding of the comparative advantages of federal courts, Neuborne viewed the Supreme Court's increasing reliance on state courts--premised as it was upon the myth of parity--with suspicion and concern: "to the extent that constitutional cases can be shifted from federal to state trial courts, the capacity of individuals to mount successful challenges to collective decisions will be substantially diminished."(17)

   Neuborne's text provides perhaps the strongest argument of federal court superiority. But it also provides a useful site at which to disentangle three aspects of the parity debate. For some judges and scholars the debate revolves around forum allocation--defining the proper role of the federal courts in a federal system and identifying what courts should hear what issues in what manner.(18) For others the parity debate has operated as a discourse about forum selection, helping to describe how lawyers might consider what court system to enter if a choice between a federal and state forum exists.(19) Thus, Neuborne began his consideration of parity in the latter voice--"As a civil liberties lawyer for the past ten years, I have pursued a litigation strategy premised on two assumptions...."(20)--but framed his conclusions in the former voice, "It is the recognition of [federal court superiority in safeguarding individual rights] and its troubling ramifications for the viability of constitutional rights--and not an uncritical assumption of parity--which should be the critical factor in current federal-state allocation decisions."(21) Still a third strand of the parity debate emerges from Neuborne's article: the question of whether the institutional arguments for or against parity merely provide a seemingly neutral discourse meant to mask naked political preferences.(22) Neuborne's distrust of the neutral discourse of "forum allocation," led him to write that all such talk might be a "pretext for funneling federal constitutional decisionmaking into state courts precisely because they are less likely to be receptive to vigorous enforcement of federal constitutional doctrine."(23) Here Neuborne implies that beyond forum allocation and forum selection, the entire parity debate might be a mere mirage: i.e., the debate may be nothing more than each side's desire to identify seemingly neutral procedural rules that will achieve its substantive goals.(24)

   Much subsequent scholarship has sought to find a way out of the parity debate. Erwin Chemerinsky has labelled as "futile" attempts to resolve the non-neutrality allegations(25) and the forum allocation debate,(26) arguing that we should instead focus on enriching the forum selection opportunities available to constitutional litigants.(27) Chemerinsky contends that the parity debate is unresolvable both because there are no commonly-accepted criteria by which to measure the performances of the competing fora,(28) and because, even were there, there is no acceptable methodology for assessing the court systems' adherence to these criteria.(29) His emphasis on maximizing forum selection subtly shifts the debate away from arguments about which forum is "better" and toward a presumption that constitutional rights are best protected if widely enforceable.(30) By contrast, Martin Redish has argued that the forum allocation issue is non-debatable because, given Congressional authority to channel federal litigation as it sees fit, the Supreme Court had less discretion in the matter than the debate requires.(31) Finally, Michael Wells has attempted to unmask the substantive sub-text of the debate, arguing that it is in fact a debate about outcome, not procedure.(32)

   Despite desires to resolve the parity debate, it is unlikely to fade away. Forum allocation questions will endure so long as our constitutional structure continues to allow federal cases to be heard in inferior federal courts and state courts. Similarly, forum selection, or forum shopping, will remain a "national legal pasttime"(33) so long as lawyers can choose between at least two fora for the resolution of any claim. And, of course, there is no foreseeable end to the inquiry of whether procedure and substance are distinct entities such that we could discuss, in any rational way, the substantive neutrality of procedure.

   Nothing in the following pages "settles" the parity debate. Little will provide much insight about proper forum allocation. Indeed, I would agree with Professor Chemerinsky that empirical evidence--particularly anecdotal empirical evidence of the type that follows--sheds little; light on forum allocation decisions.(34) Yet both sides of the parity debate regularly summon anecdotal narratives to support their positions.(35) By describing the experiences of pro-gay litigators, I hope to enrich the forum selection aspects of the parity debate with a unique, yet perhaps generalizable...