Vol. 5, No. 6 (June, 1995) pp. 168-172

RECLAIMING THE FEDERAL COURTS by Larry W. Yackle. Cambridge, MA: Harvard University Press, 1994. 297 pp.

Reviewed by Wolf Heydebrand (New York University)

This is a wise, narrowly framed, but passionately argued book about the politics of jurisdiction, of courts, of law, and of judicial decision making. It is wise in that it stands above the usual attempt still prevalent in legal circles to assert the autonomy of law and to deny the effect of values and political ideology on legal reasoning and judicial processes. It is narrowly framed in that it tackles the question on purely legal grounds, i.e. from within legal discourse and on the basis of concrete case analysis and judicial opinions. It is passionately argued in that it links the experiences of federal prisoners and others making individual claims on the basis of their constitutional rights to the diminishing chances of having these rights protected in the more universalistic federal courts as compared to the generally more particularistic state courts. Larry Yackle, a law professor at Boston University, clearly delineates the internal constitutional conflicts that derive from the attempt to justify legal change as an endogenous process when it is actually responding to external social, economic, and political interests. As a general historical backdrop to the discussion, legal realism and the pragmatist "legal process" approach are shown to be more or less adaptive strategies responding to the changes in social structure and politics of the United States in the 20th Century.

The actual historical frame for Yackle' argument, however, is the transition from the "liberal", rights-oriented Warren court to the current "conservative" Rehnquist court in which citizen's access to federal courts has been restricted. "For twenty years", says Yackle (p.1), "the Supreme Court has been dominated by justices who consistently favor governmental power over the claims of ordinary citizens.... Moreover, the Supreme Court has thrown up barriers to citizens who wish to take their federal claims to the federal courts". This shift in legal policy at the highest level is shown to be the result of the Republican ascendancy since the Nixon administration, culminating in the Reagan and Bush presidencies. The book explores the gradual erosion of constitutional rights by focusing on the differential availability of the federal courts to enforce those rights. The tendency of the new Supreme Court has been to shift decision-making authority in federal-question cases from the federal courts to the state courts which are often unable or unwilling to check governmental power and enforce federal statutes. The author urges Congress to enact new statutes in the interest of reclaiming the federal courts for their vital role in a constitutional democracy. But the Republican reaction is continuing. While the policies and legislation of the new post-1994 Republican majority in Congress will confirm the descriptive validity of Yackle's argument, it will also fail to falsify its substantive implications. The imbalance between governmental power and individual rights is likely to increase in favor of the former. Nevertheless, better to have a falsifiable argument than an empty or tautological one.

Yackle supports his argument in four substantive chapters, each focusing on a particular jurisdictional conflict between state and federal courts and each ending with concrete proposals for legislative measures that

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promise to resolve the difficulties. Thus, Ch. 2 focuses on the law of justiciability in federal court or the issue of "standing to sue". After providing the necessary historical background to this issue, the author argues that "the ability of litigants to gain access to the federal courts is crucial to the preservation of substantive federal rights" (p.52). While the Warren court attempted to break down standing barriers to the federal judicial forum, the Rehnquist court is shown to frustrate the federal courts' ability to implement constitutional rights by means of "arcane legalism" and "tortured complexity". Ch. 3 entitled "Arising Under" deals with federal-question cases, the central "subject matter" jurisdiction of federal courts, viz. that "the district courts shall have original jurisdiction of all civil actions ARISING UNDER the Constitution, laws, or treaties of the United States". Although there is at present no fundamental disagreement about whether the federal courts should have broad jurisdiction in federal-question cases, Yackle wants to see this cornerstone of federal judicial authority strengthened and protected, especially as far as the continuing tug-of-war between federal and state court jurisdiction is concerned, a conflict in which a conservative Supreme Court might not necessarily be on the federal side.

Ch.4 on "Our Federalism" deals with the customary abstention of federal courts in state-question" cases so state courts can pass on state law. But the rub is that federal courts may also decline to act in federal-question cases that are before state courts. Moreover, state-question abstention can, as Yackle shows, indirectly threaten federal court authority to decide federal question cases. Believing himself to be protected by a Supreme Court injunction overriding an old California "criminal syndicalism" statute, John Harris proceeded to distribute leaflets on behalf of the Progressive Labor Party in Los Angeles in 1970. But he was arrested and indicted under the syndicalism law, and after some legal maneuvering, was refused hearing (not standing) by the Supreme Court. Yackle concludes that the Supreme Court has extended federal-question abstention beyond the criminal context, thus channeling some federal-question litigation into the state courts where federal habeas corpus is not available.

Ch.5 , "In Custody" examines the new Court's attempt to undermine federal habeas corpus doctrine by denying or constructing obstacles to the availability of federal jurisdiction as a sequel to state court adjudication. Habeas corpus, Yackle argues, should be understood as a means to ensure that those prosecuted under criminal statutes in state courts have access to a federal court for the adjudication of their federal claims, AFTER the completion of state court proceedings. The issue is illustrated by a discussion of four specific procedural questions: the state proceedings a prisoner must engage BEFORE seeking a federal writ of habeas corpus; the TIME a prisoner should have to prepare arguments and file a federal petition; the effect the federal court should give to a prisoner's failure to raise a claim in state court AT THE TIME AND IN THE MANNER prescribed by state law; and the conditions under which a prisoner may file multiple federal petitions. It is clear from just looking at the nature of the technical and practical obstacles faced by prisoners that these issues virtually lend themselves to entangle them in a series of traps and an almost hopeless game of "catch-22". Against the crime control model of the Rehnquist court and in an attempt to resurrect the due process model crafted by the Warren court, Yackle proposes simple legislative

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modifications [involving mainly federal statute #2244(b) and Rule 9(b)] that would ensure that citizens with federal claims have access to the federal courts after state authorities have completed their work. Such a reconstruction of constitutional protection is necessary to counter, in Yackle's words, "the many ingenious strategies that conservative justices and presidents alike have pressed in hopes of forcing the federal courts from the field, directly or indirectly"(211).

The critical impact of this book derives in part from the fact that a member of the legal profession reveals and exposes, on purely legal grounds and based on technical-legal argument, the consequences of political ideology for the interpretation of rights and the application of positive law. Since it will be difficult to criticize the argument on legal grounds because of the compelling nature of the cases and opinions analyzed, challenges would have to come from the political arena, which would only prove the author's point. Yackle is, of course, not alone in focusing on the general tendency of conservative national administrations and jurists to limit civil rights and procedures in the interest of efficiency and finality. Since appellate litigation is an important part of federal court business, it has become a favorite target for judicial rationalizers who proclaim the inefficiency of "too many" and "too easy" legal remedies. The constitutional framework is thus seen as providing, perhaps even inviting, unnecessary and outdated mechanisms of relief and protection that do not serve "the ends of justice". Since "good justice" is redefined as swift, efficient, and certain justice, constitutional rights are often ridiculed as a "legal remedy system" that can be manipulated by trivial and frivolous claims. Thus does the philosophy of efficient, managerial, even inquisitorial justice find its way into the rules and decisions governing current procedure and adjudication. Yackle has done yeoman service in showing that this philosophy emanates from the conservative ideology of the Nixon, Ford, Reagan and Bush administrations and from the rules and decisions coming down from the Burger and Rehnquist courts. Thus, the rhetoric of seemingly defending state's rights, state courts, and "decentralized" adjudication as the true intent of the Constitution (as against the original intent of providing legal protection of federal claims in federal courts) shows itself as a powerful, but concealed form of judicial activism that flies in the face of the strict constructionism so often claimed by conservative politicians and judges. Yackle's analysis shows that the legal philosophy of conservatism is inconsistent and contradictory: counseling judicial restraint when it serves to prevent progressive change in procedural and substantive law, but promoting a hidden agenda of judicial activism when it comes to limiting civil rights and access to federal courts, shifting legal power from the more liberal federal courts to the generally more conservative state courts. The analysis demonstrates contemporary legal and judicial conservatism to favor the concerns of government, crime control, and efficiency over those of individual rights, due process, and constitutionality. The glaring inconsistency lies in the fact that conservatism favors individual rights only when it comes to property, freedom of contract, the right to bear arms and similar issues relevant to maintaining the status quo. Once these rights are secured, law, order and social obligations are granted priority over the remaining substantive and procedural rights of individuals. The extent to which conservatives fear an imbalance of social rights over social obligations becomes especially clear in debates on social democracy

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and social welfare, the rights of minorities and prisoners, crime control and conflict control, and -- indirectly mediated by nationalist sentiment -- executive prerogative in foreign policy. The professed agenda of "getting government off our backs" and balancing the interests of government vs. those of the individual turns out to be a myth, a convenient cover for advancing the central powers of the modern state apparatus when it serves conservative ends. As Yackle puts it: "Time and again, in case after case, as the Court narrows the scope of federal rights, it undermines our collective commitment to majoritarian government with LIMITS" (1).

Yackle's able and forceful exposition of the problems and his formulation of procedures and proposals to remedy them raises two questions. First, he is far too optimistic as to the ability and willingness of Congress to oppose the chilling tendencies he identifies. "The time is coming", he proclaims, "when we Americans will have done with the ideological conservatism that slipped into power when the mainstream liberal consensus collapsed in the mid-1970s.... The time is coming when the reins of power will come again to progressive leaders. On that day, with the guidance of a willing chief executive and on the strength of the legislative power of Congress, we will have reform legislation to set right what has recently gone so terribly wrong."(3) In light of the results of the Nov. 1994 congressional elections and the continuation of the conservative reaction, Yackle's faith in the progressive instincts of Congress and his appeals for a revival of liberal constitutionalism appear unrealistic, to say the least. What we currently see unfolding in the so-called "contract with America" is a further example of the paradox of conservatives advocating less government and regulation while favoring increased governmental authority over the rights and claims of disadvantaged individual citizens.

Secondly, I am troubled by something that reflects my own professional commitments as a social scientist as much as my sympathies with Yackle's politics of law. In order to advance a liberal and progressive agenda for legal politics, we need as much intellectual and political help as we can get, as much democratic creativity as we can muster. But Yackle argues entirely within and from within "law's empire". He does not see or use the potential alliances with political science and sociology of law that might help to integrate law and social science in terms of data and theory, knowledge and policy. He relies solely on the admittedly considerable powers of legal and constitutional reasoning without even trying to engage the intellectual resources of the social sciences. For example, there is a whole tradition of socio-legal literature that either explains or implicitly supports his discussion of the relation between federal judicial business and the adequacy of the organizational structure and judicial staffing of the federal courts. In contemplating the "orchestration of judicial business in the United States" (46), all Yackle considers is the old question whether diversity jurisdiction should be transferred to state courts before federal question jurisdiction, if at all. Most informed observers would agree that it is "powerful political and economic forces" that keep diversity jurisdiction in federal courts and that want to shift federal question jurisdiction to the state courts. But these arguments could be undergirded and expanded by recourse to relevant social science research. Similarly, the conservative "snob appeal" argument against expanding the federal judiciary and moderately augmenting the judicial work force is criticized

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merely in terms of focusing on the "talent pool" issue, i.e. the elitist question of the quality of judges and the politics of federal judicial selection which often works to exclude women and minority judges, as Yackle notes. Yet there is much social science research that shows how the organization of judicial work and authority is itself being restructured and that there are legal and procedural, not just political and economic issues at stake when judicial case management delegates judicial power to non-Article III judges, or when organizational efficiency measures are proposed to rationalize and modernize the federal courts. Managerial intervention in the process of judicial administration has consequences for judicial and legal outcomes. By ignoring this whole literature, Yackle is depriving himself and the progressive sector of the legal profession of the scholarly resources of the social sciences and, in many cases, of eager allies in the struggle for a truly constitutional-democratic vision of law and the courts.

These mild critical comments, however, cannot and are not intended to detract from the great intellectual achievement of this book. Its clear message is that "the federal courts have restrained governmental power in this society for a very long time and they promise to serve equally well in the future if we recognize the growing threat to their survival and set about reclaiming them" (214). Legal and judicial reforms proposed or engineered in the name of efficiency, speed, and "order" typically tamper with the appeals process because it is here that much of the protection of individual rights against governmental and other supra-individual sources of power is institutionalized, and it is here that lesser economic transaction costs are hoped for. Order and efficiency favor finality, the elimination of ambiguity and uncertainty, and the swift and certain enforcement of statutes. Plea bargaining rules out appeals; so does the negotiated settlement. Such efficiency measures of justice are pragmatically preferred short of a near-universal authority that can impose a judgment with finality, without appeal. This view reflects a Manichean moral order, an absolute dualism of good and evil. Moral certainty replaces historical contingency and indeterminacy with dualistic judgments about human responsibility and the justness of enforcement or punishment. The message of this book speaks to the need to reclaim and preserve the constitutional appellate procedures that empower the federal courts to protect individual rights precisely on this ambiguous terrain. May this message be heard beyond the next presidential and congressional elections.