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Burt Neuborne *
Recent Supreme Court decisions have assumed that federal and
state trial courts are equally competent forums for the enforcement
of federal constitutional rights. Criticizing this assumption, Professor Neuborne traces federalism arguments advanced during the
past two centuries by litigators seeking to have their constitutional
claims adjudicated in federal court. Professor Neuborne then examines a number of institutional differences between state and
federal trial courts that account for the continued preference of constitutional litigators for a federal trial forum.
1964. The author served as staff counsel to the New York Civil Liberties Union
in 1967-X972, and as Assistant Legal Director of the American Civil Liberties
Union in 1972-1974. He is currently a member of the board of directors of the
NYCLU and a volunteer litigator for the ACLU.
The author dedicates this piece to Judge Orrin G. Judd, whose qualities of mind
and heart made it a joy to practice before him. He transformed litigation into a
search for justice and his courtroom into a palace of inspiration.
1428 U.S. 465 (1976).
2
3 See, e.g., Hicks v. Miranda, 422 U.S. 332 (i975); Huffman v. Pursue, Ltd.,
420 U.S. 592 (I975).
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receptive to vigorous enforcement of federal constitutional doctrine. As a result, I view forum allocation decisions like Stone
not as outcome-neutral allocations of judicial business but as indirect decisions on the merits, which weaken disfavored federal
constitutional rights by remitting their enforcement to less receptive state forums.
The attempt by lawyers to utilize an ostensibly outcomeneutral federalism analysis to influence indirectly the merits of
constitutional litigation is hardly new. During the past century,
litigators have consistently advanced ostensibly outcome-neutral
federalism arguments, assertedly unrelated to the merits, to
channel constitutional adjudication into forums calculated to
advance the substantive interests of their clients. Although the
political persuasion and economic status of the constitutional
litigants have varied with the changing nature of the rights invoked, one factor has remained constant: interests and groups
seeking expansive definition and vigorous application of federal
constitutional rights have sought a federal judicial forum while
their opponents, attempting to narrow federal rights and weaken
their implementation, have emphasized the facially neutral
federalism concerns which argue in favor of state judicial enforcement of federal constitutional rights.
In the first Part of this Article, I will briefly sketch the interaction among federalism arguments, forum allocation, and the enforcement of substantive federal rights during the last century.
In addition, I will attempt to show that a similar interplay
occurred earlier in the nineteenth century. Having presented the
historical pattern, I will suggest an institutional explanation of
the long-standing preference for federal courts exhibited by persons seeking to enforce federal constitutional rights. By combining the historical pattern with an institutional explanation, I
hope to cast doubt on the propriety of deciding contemporary
forum allocation issues under a mistaken assumption of parity.
I. HISTORICAL CONSIDERATIONS
In 1886, the Supreme Court accepted Roscoe Conkling's contention that business corporations were "persons" within the
meaning of the due process clause of the fourteenth amendment.4
In a series of decisions in the late nineteenth and early twentieth
centuries, the Court infused the due process clause with substantive content, thus providing business corporations with a potent
" See Santa Clara County v. Southern Pac. R.R.., 118 U.S. 394 (1886). See
521 (x878); Chicago, B. &
Q.R.R. v. Iowa, 94 U.S. 155 (1877).
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defense against state regulatory initiatives. 5 Once the substantive federal right was enunciated the forum allocation struggle
twentieth centuries corporate plaintiffs challenging the constitutionality of state regulatory activities were met with arguments
that the existence of adequate state remedies, 7 an asserted lack
of the requisite "state action" where the challenged state activity
might also have violated state law, 8 and the concept of sovereign
immunity embodied in the eleventh amendment 9 precluded an immediate hearing in federal court. The Supreme Court consistently
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1Id. at x59-63. Justice Peckham reasoned that since the eleventh amendment
conferred immunity only on the actions of a state, and since states were not authorized to act in violation of the Federal Constitution, actions of a state official
which violated the Federal Constitution could not be deemed the actions of the
state but merely the ultra vires acts of an erring individual.
' See id.
16See 227 U.S. at 288.
17See, e.g., Lynch v. Household Fin. Corp., 405 U.S. 538 (1972); Hague v.
CIO, 307 U.S. 496 (1939).
....
"1
1977J
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See, e.g., Lane v. Wilson, 307 U.S. 268 (1939); cf. Railroad Comm'n v. Pull-
man Co., 312 U.S. 496 (i94i) (abstention by federal court to enable state court
to resolve questions of unclear state law).
'"See, e.g., Edelman v. Jordan, 415 U.S. 651 (1974). See also Fitzpatrick v.
Bitzer, 427 U.S. 445 (1976).
20307 U.S. 496 (1939).
21 Plaintiffs in Hague alleged that local officials were engaged in concerted action to prevent union organizers from speaking in Jersey City. While plaintiffs'
claim clearly satisfied the "arising under" requirement of federal question jurisdiction, serious doubt existed concerning the satisfaction of the jurisdictional
amount. Plaintiffs argued that 28 U.S.C. 1343(3) (1970) provided an alternative jurisdictional base without the requirement of a jurisdictional amount.
22307 U.S. at 518, 531-32. Justice Stone's attempt to forge a distinction between personal and property rights for federal jurisdictional purposes was rejected in Lynch v. Household Fin. Corp., 405 U.S. 538 (1972), when the Court
ruled that 28 U.S.C. 1343(3) (,970) provided a jurisdictional base for all
constitutional claims against state officials without regard to the jurisdictional
amount requirement of 28 U.S.C. 1331(a) (197o).
23365 U.S. 167, 183 (ig6i). Similar questions concerning whether plaintiffs
would be compelled to present their claims to a state court before final determination in a federal court would be available arose in Lane v. Wilson, 307 U.S.
268 (1939), and Railroad Comm'n v. Pullman, 312 U.S. 496 (i94i). In Lane,
defendants argued that available state judicial remedies should be exhausted prior
to federal judicial review of Oklahoma's grandfather clause. 307 U.S. at 274. Oklahoma's claim in Lane was virtually identical to Nebraska's position in Smyth v.
Anes, see 169 U.S. at 478.
Similarly, the decision in Pullman to abstain so that the state court might
resolve unclear questions of state law may be seen, in part, as reflecting a notion
that the issue of whether the challenged state act was, in fact, authorized by state
law should be decided by state courts. See Developments in the Law-Section
r983 and Federalism,9o HARv. L. Rav. 1133, 1250-74 [hereinafter cited as Develop-
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Southern concern over the status of escaped slaves had been aroused by the preRevolutionary English decision in Sommersett's Case, 2o Howell's State Trials x,
98 Eng. Rep. 499 (K.B. 1772). The case was popularly perceived as establishing a
conflicts-of-law rule which tested the right of a master to his slave which he had
brought to "free" territory by the law of the forum in which the claim was ad-
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3.)
(1842).
3241
33
and McKinley, and Justices Wayne and McLean in additional separate opinions
all concluded that federal authority to legislate for the enforcement of the fugitive
622-23,
637, 66z.
Justices Thompson and Daniel, in separate opinions, found that the states
possessed the power to legislate concurrently 'with the federal government so long
as they "intended, in good faith, to protect the owner in the exercise of his rights
of property." Id. at 627, 635, 652.
" Among the Justices writing opinions that the Pennsylvania antikidnapping
statute was invalid in the light of Congress' exclusive power to establish procedures for the adjudication of claims to fugitives were two Northerners sympathetic to the antislavery cause, Justices Story and McLean. In a sense, both
appear to have been compelled to reach a result which they considered morally
indefensible because of the affirmative vindication of the rights of the slaveholders clearly found in the Constitution, which they read in the light of mid-nineteenth-century legal positivism and strong contemporary notions of the limited
role of the judiciary to apply "the law, and not conscience." See R. COVER,
supra note 29, at 119-2o; T. MORRIS, supra note 27, at 2o3. See also Miller v.
McQuerry, 17 F. Cas. 332, 339 (C.C.D. Ohio 1853) (No. 9,583); Vaughn v.
Williams, 28 F. Cas. 1,15, 1116 (C.C.D. Ind. 1845) (No. 16,9o3). However, each
included language in his opinion with the apparent intent of undercutting the
effect of the fugitive slave law. Justice Story believed that by giving Congress
exclusive power in the field he had enhanced the prospects for an eventual repeal
of the fugitive slave law. See T. MORRIS, supra note 27, at io3. Further, he
twice intimated in his opinion that since the fugitive slave clause was directed
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which may be viewed as an attempt to impose a -primitive exhaustion requirement on persons invoking a federal forum to enforce
federal constitutional rights. A bleman thus completed the
process begun in Prigg of affirming the primacy of federal institutions in detailing the procedural and substantive components of
the rights established by the fugitive slave clause.
The federalism positions adopted by the parties in the Reconstruction era were also shaped by assumptions about their impact
on the substantive rights of blacks. But during Reconstruction
these positions were reversed. The Republicans, the spiritual and
political descendants of the abolitionists who, in the fugitive slave
context, had urged states' rights positions, championed the most
expansive notions of federal power; the Democrats, including
many former opponents of the abolitionists, embraced views reflecting broad sympathy for the independent position of the states
in a federal system.4 While the Republicans prevailed initially
in Congress, the Supreme Court, reflecting the increasing Northern indifference to blacks, eventually eviscerated the role of
federal institutions in protecting the rights theoretically secured
4
to the freedmen.
Although the parallel between nineteenth- and twentiethAttorney General. United States v. Booth, 62 U.S. (21 HOW.) 5o6, 5I-I2
(1859).
40 By securing a state forum to hear the habeas request, the fugitive could
give testimony which could then be used to establish certain facts by documents
in the proceeding before the commissioner. Further, in the state court proceeding
the alleged fugitive could obtain other protections, such as the appointment of a
guardian ad litem. Moreover, the existence of a record compiled in a state court
hearing which would lead a state court to conclude that the alleged fugitive was
not in fact a fugitive from service might make the commissioner less likely to
grant the requested removal certificate. Finally, the state court proceedings could
prolong the entire matter to the point where a rescue might be made, a purchase
negotiated, or a witness found to help the fugitive's case.
41 See generally H. HYwN, A MORE PERFECT UNION 433-542 (x975); J. RANDALL & D. DONALD, THE CIVI WAR AND RECONSTRUCTION 579-80, 683 (1969);
K. STAmPP, THE ERA OF RECONSTRUCTION, 1865-1877, at 135-43 (1965).
42 Even before the Reconstruction process had been concluded, the Supreme
Court began to interpret the Reconstruction amendments to restrict the range
of interests protected and the type of conduct prohibited. In The Slaughterhouse
Cases, 83 U.S. (16 Wall.) 36 (1873), the Court distinguished the "privileges and
immunities" of national citizenship from those of state citizenship and limited the
fourteenth amendment to the former, much narrower category. Id. at 79-80.
See also United States v. Cruikshank, 92 U.S. 542 (1876) (right to assemble to
petition for redress of grievances not a component of national citizenship unless
the petition directed at the national government). The "state action" doctrine
similarly restricted the scope of the protection afforded by the changes in the
Constitution by precluding federal vindication of the rights of the freedmen against
private interference. See, e.g., James v. Bowman, igo U.S. 127 (x9o3); Baldwin
v. Frank, 120 U.S. 687 (1887); The Civil Rights Cases, 109 U.S. 3 (1883); United
629 (1882).
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The Supreme Court, however, presently seems bent on resolving forum allocation decisions by assuming that no factors exist
which render federal district courts more effective than state trial
or appellate courts for the enforcement of federal constitutional
rights." I hope to challenge the Court's present assumptions,
and to support my own, by focusing on institutional characteristics relevant to assessing the relative competence of state and
federal courts as constitutional enforcement mechanisms.
Admittedly, since forum allocation choices implicate concerns for federalism, judicial economy, and the federal courts'
caseload, it is not suprising that there has been an increasing
tendency to channel constitutional challenges to state action into
the state courts. And, of course, even if federal district courts
were conceded a comparative advantage in constitutional enforcement, those concerns might militate in favor of routing certain
constitutional cases into state forums. However, by uncritically
assuming parity, the Supreme Court has avoided the difficult, but
critical, issue of whether concerns for federalism, efficiency, and
tion of Evidence, 7 VAL. U.L. REV. 191 (1973). See generally Balustein & Ferguson, Avoidance, Evasion and Delay, in THE IMPACT OF SUPREME COURT DECISIONS
96 (T. Becker ed. 1969); Lusky, Racial Discrimination and the Federal Law: A
Problem in Nullification, 63 CoLum. L. REv. 1163 (x963); Schmidhauser, The
Tensions of Federalism: The Case of Judge Peters, in CONSTITUTIONAL LAW IN
IN THE POLITICAL PROCESS 36 (J. Schmidhauser ed. 1963). Specific attempts to
measure state court response to Supreme Court decisions broadening constitutional
rights include Manwaring, The Impact of Mapp v. Ohio, in THE SUPREME
COURT AS POLICY MAYER 24 (D. Everson ed. 1968); Vines, Southern State
Supreme Courts and Race Relations, I8 WEST. POL. Q. 5 (1965); Washy, Public
Law, Politics and the Local Courts: Obscene Literature in Portland, 14 J. Pus.
L. 1o5 (1965); Note, Gideon, Escobedo, Miranda: Begrudging Acceptance of
the United States Supreme Court's Mandates in Florida, 2i U. FLA. L. REV. 346
(1969). See generally H. JACOB, JUSTICE IN AMERICA 218 (2d ed. 1972). Expression of state judicial hostility to Supreme Court decisions broadening individual
rights has not been unknown. See, e.g., State v. Phillips, 540 P.2d 936, 938-39
(Utah 1975); z958 Report of the National Conference of State Chief Justices, in
CONSTITUTIONAL LAW IN THE POLITICAL PROCESS 32 (J. Schmidhauser ed. 1963)
(signed by 36 chief justices).
Unfortunately, little scholarly attention has been paid to the state trial
benches. The only serious study is K. DOLBEARE, TRIAL COURTS IN URBAN
POLITICS (1967). A substantial literature exists, however, on the functioning of
the federal district courts. See, e.g., J. PELTASON, FIFTY-EIGHT LONELY MEN
(I96i); R. RICHARDSON & K. VINES, THE POLITICS OF FEDERAL COURTS (1970);
Douglas, Federal Courts and the Democratic System, 21 ALA. L. REV. 179 (1969);
Wisdom, The Friction Making, Exacerbating Political Role of Federal Courts, 21
Sw. L.J. 411 (x967).
47See, e.g., Stone v. Powell, 428 U.S. 465, 493 & n.35 (1976); Doran v.
Salem Inn, Inc., 422 U.S. 922, 928, 931 (1975); Huffman v. Pursue, Ltd., 420
U.S. 592, 6o6 (I975). See generally Developments, supra note 23, at 1282-87;
see also Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973).
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9"
(c)
(1970).
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process. While the appellate opinion is the more glamorous aspect of constitutional adjudication, it takes a trial court to translate the abstract norms of
an appellate decision into reality. See generally J. FaRAN, COURTS ON TRIAL:
MYTH AND REAT ITY IN Aamic.x
JUSTICE 222-24 (1950).
" The widespread breakdown of Southern justice which motiviated enactment
of the Civil Rights Act of 1871, see Developments, supra note 23, at 1153-56, and
similar breakdowns during the height of the civil rights movement which pro-
voked calls for significant expansions of federal jurisdiction, see, e.g., Amsterdam,
supra note 52, at 793-4o5, do not exist today.
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"6See, e.g., N.Y. Times, Jan. 19, 1977, at Ai, col. 4, Dx7, col. 6 (describing
the operation of advisory committee, comprised of legal practitioners and
scholars, established to counsel Senator Daniel P. Moynihan on the appointment
of federal judges and prosecutors in New York).
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STATES COURTS 2 (1976) [hereinafter cited as U.S. ANNUAL REPORT]. In California, there are 5o3 superior court judges, 406 municipal court judges, and at
least i99 justices of the peace. JUDICIAL COUNCIL OF CALIFORNIA, ANNUAL REPORT OF THE ADMfINISTRATIVE
COURTS 98,
125,
133
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level of legal talent than state trial courts can hope to obtain.
The selection processes utilized to staff the respective judicial
posts also incline toward a federal bench of higher professional
distinction. While the federal selection process is not without
flaws,6" it does focus substantially on the professional competence of the nominee. 63 The selection processes for state trial
courts are generally less concerned with gradations of professional competence once a minimum level has been attained. 4
Neither elections nor an appointment process based largely on
political patronage is calculated to make refined judgments on
technical competence.6 5
The competence gap does not stem solely from the differences
in the native ability of the judges. While it is often overlooked,
the caliber of judicial clerks exerts a substantial impact on the
quality of judicial output. 6 Federal clerks at both the trial and
appellate levels are chosen from among the most promising recent
law school graduates for one- to two-year terms. State trial
clerks, on the other hand, when available at all, tend to be either
career bureaucrats or patronage employees and may lack both
the ability and dedication of their federal counterparts. Moreover, while the caseload burden of the federal courts is substantial,
it pales when compared to the caseload of most state trial courts
of general jurisdiction. 7 Thus, even if state and federal judges
62
See
H.
CHASE, FEDERAL
PROCESS
(1972);
J.
GROSSmAw,
LAwYERS AND JUDaES (1965).
63
REV. 839, 846 (1973); Note, Judicial Selection in the States: A Critical Study
with Proposals for Reform, 4 HoFsTRA L. REV. 267 (1976). See generally S.
EscoviTz, supra note 45.
6
Discussion of the impact of clerking patterns on judicial performance has
been sparse, impressionistic, and unsatisfactory. Perhaps the most useful collection of materials appearing to date is Judicial Clerkships, 26 VAND. L. REV.
1123 (i973).
67 One useful way of comparing the relative caseloads of state and federal
trial courts is again to contrast the California and federal systems. In fiscal
year 1976, approximately 17O,OOO civil and criminal cases were commenced in
the United States district courts. U.S. ANNUAL REPORT, supra note 6o, at S, I-x2
(table C-i). During the same period in the California superior courts, where
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LAWYERS
JUDGES:
THE
ABA
AND
THE
POLITICS
OF
JUDICIAL
SELECTION
(1965); D. JACKSON, JUDGES 247-76 (I974); J.PELTASON, supra note 46; Schmidhauser, The Justices of the Supreme Court: A Collective Portrait, 3 MIDWEST
J. POL. SeI. 1 (1959).
"7 See generally Grossman, Social Backgrounds and Judicial Decision-Making,
79 HARV. L. Rlv. 155, (1966); Haines, General Observations on the Effects of
Personal, Political and Economic Influences in the Decisions of Judges, 17 ILL. L.
REV. 96 (1922).
"8One example of judicial class bias at work is the formulation of executive
immunity in Barr v. Matteo, 360 U.S. 564 (959).
Immunity was confined to
persons whose high status in the government virtually assured membership in
the same social and educational elite to which the judge belonged. Defendants
occupying a less exalted status in government (and in the social order) were
refused immunity and remitted to a good faith defense. See generally Developments, supra note 23, at 1209-17. The orthodox explanation for confining immunity to department heads is their greater need for freedom of action. However,
when one compares police commissioners with patrolmen, it is unclear why the
commissioner should be immunized, but not the patrolman who must make more
difficult decisions with less time for reflection. Freezing immunity at a high level
is explicable more readily, I submit, as an expression of trust for members of
one's class and mistrust for outsiders.
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them vulnerable to majoritarian pressure when deciding constitutional cases.82 Thus, when arguable grounds supporting the
majoritarian position exist, state trial judges are far more likely to
embrace them than are federal judges.8 3 This insulation factor, I
suggest, explains the historical preference for federal enforcement of controversial constitutional norms. While the level of
hostility towards any given constitutional decision varies from
locality to locality, from issue to issue, and over time, constitutional adjudication still frequently involves issues which raise
strong political passions. Insulation from political pressures may
not be necessary in all constitutional cases; yet, where such pressures are strong, insulated judicial forums are necessary if constitutional rights are to remain viable.
E. Some Costs of the Federal Forum Preference
Opting for a federal forum in constitutional cases admittedly
entails some costs. First, an insulated federal judge may be less
sensitive to the social milieu into which his decisions must fit and
thus less successful in shaping decisions and remedies to the
reality of that milieu. That danger, however, is minimized by
the fact that "insulated" federal judges are typically drawn from,
and well acquainted with, the locality in which they sit.84 Even so,
the decisions of a politically insulated federal judge may encounter greater public resistance than the same decisions rendered
by a politically accountable state judge. Clearly, to the extent
that constitutional norms are enforced by a forum sensitive to the
majority will, the chances of public acceptance are enhanced.
Conversely, by entrusting constitutional adjudication to federal
trial forums perceived as free from majoritarian influence, a
measure of public acceptance is lost. That loss, however, seems
necessary to insure the existence of a forum capable of protecting
individual rights in the face of local political dissatisfaction.
Second, by urging a broad option to invoke federal jurisdiction in constitutional cases, civil rights lawyers exacerbate an
"2 The impact of political concerns on judicial behavior is discussed in Jacob,
Judicial Insulation-Elections,
Direct Participation and Public Attention to the
Courts in Wisconsin, 1966 Wis. L. Rv. 8oi; Ladinsky & Silver, Popular Democracy
and Judicial Independence: Electorate and Elite Reactions to Two Wisconsin
Supreme Court Elections, 1967 Wis. L. REV. 128.
" The insulation which a federal forum provided out-of-state litigants against
local pressures was, of course, the initial justification for diversity jurisdiction.
Friendly, The Historic Basis of Diversity Jurisdiction, 4 HARv. L. REV. 483,
492-93 (1928).
While the local pressures operating on a diversity suit have all
but disappeared, the nature of constitutional adjudication, involving as it does a
challenge to a majoritarian position, continues to suffer from the danger of local
pressure, especially at the trial level.
84 See p. 1120 supra.
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of federal judges
bespeak a perception that some increase in the size of the federal bench will not
seriously undermine its quality and should, if successful, appreciably ease federal
caseload burdens. See [i 9 7 71 U.S. CODE CONG. & An. NEWS at xiv.
S6As numerous eminent commentators have suggested, Jones Act, FELA,
and diversity cases, among others, could be better handled in forums other than
the federal courts. See, e.g., H. FRIENDLY, supra note 72, at 129-33; Burger,
Annual Report on the State of the Judiciary, 62 A.B.A.J. 443, 444 (976);
Haynsworth, Book Review, 87 Hagv. L. RaV. io82, io85, io88-9i (1974).
87 See note 67 supra.
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III. CONCLUSION
One of the current Court's most vigorous proponents for
channelling constitutional challenges against state officials into the
state courts has been Justice Rehnquist. s" Professor David
Shapiro, recently assessing Justice Rehnquist's performance on
the Court, has suggested that his opinions have been guided by
three basic principles:
(I) Conflicts between an individual and the government
should, whenever possible, be resolved against the individual;
(2)
91 Id.
REv.
X977]
1131
"often overlap"; they are, in fact, integrally related by the perception that state judicial forums are less likely to operate as
strong countermajoritarian power centers than are federal district courts. Were one to reformulate Professor Shapiro's first
proposition more charitably, it might read:
In a democracy, actions bearing the imprimatur of democratic decisionmaking should be overturned by courts only when
absolutely necessary; all doubts should be resolved in favor of
upholding a collective societal judgment.
If the views of Justice Rehnquist and those of a current majority of his brethren reflect not merely a preference for government at the expense of the individual, but rather a principled
theory of deference to majoritarian decisionmaking, 2 the Court's
increasing preference for state court adjudication and its distrust of federal jurisdiction are explicable as the logical forum
allocation corollaries to its major substantive premise. As subsidiary propositions they rest, I suggest, on an understanding that
the only judicial forums in our system capable of enforcing
countermajoritarian checks in a sustained, effective manner are
the federal courts and that, 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. It is the recognition of that fact
and its troubling ramifications for the viability of constitutional
rights -
which