For helpful conversations and thoughtful feedback that made this Article better, I am grateful to Patrick Barry, William Baude, Lisa Bernstein, Samuel Bray, Zachary Clopton, Michael Collins, Richard Epstein, Patrick Fuster, Daniel Hemel, Zac Henderson, Aziz Huq, Daniel Kelly, Adam Mortara, Michael Solimine, Manuel Valle, Laura Weinrib, Hon. Diane Wood, Ilan Wurman, and participants in workshops and conferences at the University of Chicago, Loyola University Chicago, and the American Association of Law Schools. Thanks also to the editors of The University of Chicago Law Review for their hard work and helpful input.
In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before, but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, which requires federal courts to sometimes refrain from hearing cases that are within their jurisdiction.
This Article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes.
The history—relevant today as the political discussion around the courts again echoes the Progressive Era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would be one embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has the potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.
TABLE OF CONTENTS TABLE OF CONTENTSThe Supreme Court did not use the term “federalism” in any opinions in its first 150 years.1 The Court had (of course) previously talked about federal-state relations, but it did so without the term “federalism”—it preferred a different vocabulary, discussing the police powers of the states and the enumerated powers of the federal government.2 The concept of federalism went unlabeled.3 It was not until 1939 that the term “federalism” came into regular use on the Supreme Court. Federalism arrived at the Court as a free-floating principle of constitutional theory, not explicitly tethered to any particular textual basis in the Constitution. For the ambitious justice who introduced the term, it would provide the basis for a subtle but significant rollback of federal court authority. That ambitious justice was Felix Frankfurter. His innovation fundamentally shaped the relationship between federal and state courts. Particularly through his invention of the federal court abstention doctrine, Justice Frankfurter made federalism a central consideration in assessing whether a particular case should be in state court instead of federal court.4 How and why Frankfurter brought federalism to the Supreme Court’s case law is an untold chapter in federalism’s legal, political, and intellectual history. It is situated squarely in the Progressive Era debates about the role of the federal courts in the American constitutional system. It is a history that can also help us to see more clearly the challenges and possibilities for abstention’s future.
Frankfurter invoked federalism to justify creating the first abstention doctrine in Railroad Commission of Texas v Pullman Co. 5 In that case, the Court held that federal courts must decline to decide cases that depend on an unsettled issue of state law, the resolution of which might remove the necessity of deciding a constitutional issue.6 Since Frankfurter introduced “Pullman abstention,” abstention doctrines have multiplied. Federal courts apply several related abstention doctrines to refuse to hear certain cases that can be heard by state courts.7 The federal abstention doctrines have been controversial. A number of scholars have questioned whether it is appropriate for federal courts to refuse to decide a case that is clearly within their jurisdiction.8 In response, a leading defense of abstention argues that abstention doctrines are based on longstanding traditions of the judiciary’s discretionary control of its docket.9
Federalism, though, was not among the reasons offered to justify judicial discretion to decline hearing cases prior to Frankfurter’s confirmation to the Supreme Court. By offering a history of Frankfurter’s interest in federalism-based abstention, this Article highlights the historical contingency of the doctrine. That doesn’t discredit the doctrine—just about every conceivable legal rule has some element of historical contingency in the circumstances of its creation. But it does show that the federalism justification for abstention doesn’t have the historical pedigree some have used to defend abstention.
This historical point has doctrinal implications for abstention’s scope. The more federalism is treated as a freestanding legal value that might justify abstention,10 the more likely it is that abstention should apply across the board—to cases at law and equity—when states have strong interests in deciding a given case.11 But if federalism is just to be folded into the equity calculus as another factor when a court already has some measure of discretion, then the current Supreme Court’s tendency to limit abstention strictly to actions seeking “equitable or discretionary relief” makes sense.12 Still, commentators have noted that, despite strong language in some of its opinions, the Supreme Court has not yet directly held that abstention could never be used in actions at law.13 For his part, Frankfurter preferred the broader version of abstention. Contra the Supreme Court’s emphasis in more recent years, Frankfurter denied that abstention was merely a product of equity and claimed it had an independent basis in federalism.14
Judicial federalism—the management of the relationship between federal and state courts—is not usually at the top of anyone’s list of politically charged legal issues. Abstention certainly is not. But Frankfurter’s innovations in this field were a means to his very political goal: reducing the power of the federal courts. Federalism was the malleable, ostensibly neutral concept that provided Frankfurter with a rationale to pursue this long-term goal.
Federalism’s political flexibility and unpredictability is a key theme that emerges from the history. At various times in American history, federalism has taken on partisan political valences. When the Rehnquist Court cut back on federal power,15 observers described it as a conservative “federalism revolution”—tied to both the conservative politics and the historically based originalist legal theories of that Court’s majority.16 But recent scholarship has reminded us that federalism has no single political orientation.17 Federalism may have served conservative ends in some historical episodes, but it served progressive ends in others.18 Contemporary proponents of progressive federalism19 argue that federalism should once again be used to further progressive causes.20 To illustrate, today, liberal Democratic state attorneys general are putting progressive federalism into action as they litigate against conservative policies promulgated by a Republican administration in the national government.21 The history recounted in this Article provides a historical illustration of the progressive federalism of the Progressive Era itself, showing that Frankfurter used federalism to try to hold back the conservative federal courts. Federalism itself was not viewed as partisan, political language—and that, it seems, is part of the appeal of using the vocabulary of federalism to pursue political objectives.
The history recounted in this Article demonstrates that progressive federalism has deep roots. It also directs the focus to an issue that has mostly been left out of recent progressive federalism scholarship. In that literature, there has been plenty of discussion of the relationship between federal and state legislative, executive, and regulatory powers. This Article instead emphasizes judicial federalism—that is, the relationship between federal and state courts. A close look at the politics of judicial federalism is timely. Since the summer of 2018 and the contentious arguments following the retirement of Justice Anthony Kennedy, there have been renewed calls by a new generation of liberals and progressives to restrain the federal courts.22 The national political conversation around the courts today once again echoes the concerns raised in the Progressive Era. Abstention deserves to be part of the discussion—not only as an option, but as a reminder that the Progressive opposition to the courts had (and likely will have again) consequences that might be discomfiting to today’s progressives and liberals.23 The story of Frankfurter’s abstention can, among other things, remind modern observers that principles like federalism can have an element of unpredictability even when wielded strategically for political gains. Progressive politicians discussed something very much like abstention as early as the 1910s, and Frankfurter took note. But by the time Frankfurter made it part of the Supreme Court’s jurisprudence, the labor issues that had originally motivated its introduction were (essentially) gone and the doctrine’s first application thwarted civil rights litigation instead.
After considering the history of Frankfurter’s federalism as well as its role in introducing the vocabulary of federalism and creating abstention doctrines, this Article presents three possible futures for federalism-based abstention doctrine. One possible future is to maintain the Supreme Court’s current status quo, which emphasizes the division between actions at law and equitable actions. The current state of affairs is more informed by originalist (or at least historical) considerations than was Frankfurter’s most expansive vision of abstention: if one believes that legitimate constitutional interpretation requires ascertaining the meaning of the Constitution at the time of its adoption, Frankfurter’s originality in crafting abstention doctrine is a liability. The discretionary traditions of equity may provide a historical basis for abstention, but federalism does not. The upshot of this analysis is to support the Supreme Court’s tendency in the Rehnquist and Roberts eras to apply abstention in equitable actions but not in actions at law.24
A second future would involve a drastic cutback of abstention doctrine. This might be thought of as a “legal liberal” future. Abstention, as Frankfurter designed it, is in tension with the liberal minority-rights-protecting vision for the courts. Abstention was designed by a Progressive in order to allow federal courts to avoid deciding issues of federal law, which should be troubling to legal liberals who look to federal courts to preserve minority rights.
A third future would embrace the fullness of Frankfurter’s vision for abstention. For either a modern progressive or for a “judicial restraint” conservative interested in reducing the power of the federal courts, Frankfurter’s vision might be inspiring. At least on the margins, abstention promises to curb federal court power and put more adjudicative power in state courts.
This Article is structured as follows. Part I describes Frankfurter’s introduction of federalism on the Court. Part II describes the Progressive Era conflicts surrounding the federal courts that formed the backdrop for Frankfurter’s thinking. Part III explores Frankfurter’s analysis of federalism and the role of the federal courts in light of his Progressive commitments. It documents how abstention specifically emerged from the Progressive Era efforts to limit federal court power and instead to empower state courts. Part IV uses this history to consider the three possible futures mentioned above for abstention.
Prior to 1939, the Supreme Court never used the term “federalism.” The Court had dealt with classic issues of federal power throughout its history—such as the supremacy of federal law over state law25 and the scope of various enumerated powers in the federal constitution. 26 But “federalism” was a term used by scholars, not judges. Scholars were the ones who had the occasion to describe, at a high level of generality, the concept of a government involving multiple locations of authority. This could describe the national and state governments in the American system, 27 or similar arrangements in any number of other countries. 28 Sometimes the term was also used to refer to a political attitude, in which case it could refer generally to an attitude of centralizing, 29 and sometimes to the Federalist political party at the nation’s founding. 30
The term had rarely been used in any judicial opinions prior to Justice Frankfurter’s use of the term on the Supreme Court in 1939. Database searches of all state and federal cases for “federalism” reveal only twelve references in any reported cases decided before 1939. 31 The references to the term were often trivial. One of these uses was in the US Reports in an oral argument. 32 Two more were in oral argument in state courts.33 Two were in early nineteenth-century libel cases in which allegedly defamatory newspaper publications mentioned “federalism” in discussions of state politics. 34 Two were citations to historical works that used the term in their titles—one was about the United States and one about Australia. 35 One was a reference to a French legal theorist as a “leading French writer on Federalism.” 36 One was a reference to England, not the United States. 37 Only in three cases did the term appear in an opinion with anything like a substantive reference to the American federal-state relationship. 38 With this as the background in jurisprudence, it is all the more striking how suddenly and dramatically Frankfurter introduced the term into the Supreme Court’s jurisprudence.
Federalism appeared repeatedly in Frankfurter’s judicial opinions in a variety of settings. It appeared in Supreme Court opinions almost immediately after Frankfurter joined the Court in 1939 as he began to articulate some of his views on federalism in a diverse range of cases. 39 This Part will introduce Frankfurter’s initial statements of his views in his 1939 opinions, before turning to focus on two areas of particular importance to him: the power to issue injunctions and abstention doctrine.
Frankfurter made four references to federalism in his judicial opinions in his first year on the Court. Giving a concept a name is a significant development. The label may not change the concept,40 but a change in labeling is a clue to the historian that something new is going on. 41
The first time the word “federalism” appeared in a Supreme Court opinion was Frankfurter’s opinion in Hale v Bimco Trading, Inc. 42 The opinion was released on February 27, 1939, barely a month after Frankfurter had joined the Court. 43 The case concerned a Florida statute that required the State Road Department to inspect imported cement and collect an inspection fee. In a Florida state court proceeding, a petitioner sought a writ of mandamus to compel Hale, a member of Florida’s State Road Department, to enforce the statute. 44 The Supreme Court of Florida issued the writ of mandamus. Meanwhile, Bimco Trading filed suit in federal district court, arguing that the Florida statute was unconstitutional and seeking an injunction against enforcement of the statute. 45 The federal court issued the injunction and the Florida Supreme Court stayed the mandamus pending Supreme Court review. The first issue centered on the Anti-Injunction Act. 46 Frankfurter said it was inapplicable in the present case, precisely because the federal court never in fact enjoined the state court. Frankfurter concluded his discussion of the Anti-Injunction Act with a brief comment on its function: “That provision is an historical mechanism . . . for achieving harmony in one phase of our complicated federalism by avoiding needless friction between two systems of courts having potential jurisdiction over the same subject-matter.” 47 That was all; Frankfurter then went on to address the merits of the statute’s validity. But that reference to “our . . . federalism” would be back.
A few weeks later, Frankfurter again used the phrase “our federalism” to describe the jurisdiction of the Court over controversies between two states. 48 The phrase appeared again in a tax case49 in which the Supreme Court refused to find immunity from state tax for a federal employee. 50 Frankfurter concurred, arguing that it was essential not to expand intergovernmental immunities from taxation in such a manner as to undercut the authority of either state or federal government. “[T]he fact that we are a federalism [sic],” Frankfurter wrote, “raises problems regarding these vital powers of taxation. Since two governments have authority within the same territory, neither through its power to tax can be allowed to cripple the operations of the other.” 51 In previous cases, Frankfurter suggested, the Court had been insufficiently sensitive to this concern: “A succession of decisions thereby withdrew from the taxing power of the States and Nation a very considerable range of wealth without regard to the actual workings of our federalism, and this, too, when the financial needs of all governments began steadily to mount.”52 In the intervening years, “two other great English federalisms,” Australia and Canada, considered and rejected intergovernmental tax immunity.53 Frankfurter’s phrasing sounds odd to modern ears, unaccustomed to hearing the American state referred to as “a federalism.” This in itself is a striking reminder that federalism was not a widely used term at the time, and its usage was less fixed than it would be by the end of the twentieth century. (Frankfurter may have made federalism a common term in modern constitutional law, but he did not succeed in popularizing all of his own usages.)
In the fall of 1939, Frankfurter was again talking about federalism. The case was Palmer v Massachusetts,54 and it foreshadowed Frankfurter’s later opinions on abstention. In Palmer, a railroad had filed for reorganization under the federal bankruptcy laws. The railroad’s bankruptcy trustees had applied to the Massachusetts Department of Public Utilities for permission to abandon eighty-eight passenger stations.55 The Department conducted a series of hearings on the issue. While the proceedings were still ongoing, Palmer, a creditor of the railroad, argued in the bankruptcy proceedings for an order directing the Trustees to abandon the stations. Massachusetts argued that the district court lacked jurisdiction, but the district judge disagreed and issued a decision on the merits, granting “the very relief for which the Trustees had applied to the Department and which was still in process of orderly consideration.”56 The Court granted certiorari because, in the words of Frankfurter’s majority opinion, the case raised “important questions” about the application of the railroad bankruptcy law, “particularly where it intersects the regulatory systems of the states.”57 As Frankfurter formulated the issue, “[t]he District Court assumed power to supplant the relevant authority of the state—an authority which . . . has not been conferred by Congress either upon the federal courts or the Interstate Commerce Commission.”58 He made it clear from the outset that “our federalism” was central to the case. “[W]ariness,” he said, is necessary when “the problem of construction implicates one of the recurring phases of our federalism and involves striking a balance between national and state authority in one of the most sensitive areas of government.”59
Frankfurter argued that the Court should be wary about finding congressional interference with state regulation. Congress had chosen to regulate “purely intrastate activities of an interstate carrier” when necessary to effectuate interstate regulation.60 But this was the exception rather than the rule, and federalism was the reason why: “[S]uch absorption of state authority is a delicate exercise of legislative policy in achieving a wise accommodation between the needs of central control and the lively maintenance of local institutions.”61 The opinion then considered and rejected the claim that the bankruptcy code provided the district court with equal authority in the context of bankrupted railroads as in other contexts.62
Thus, from the very start of Frankfurter’s career on the Supreme Court, he established federalism as an important analytical consideration in a number of doctrinal areas. He also made several points about federalism clear in his opinions. First, federalism was a shared American value (“our federalism,” in Hale and Palmer). Second, federalism required a careful “balance between national and state authority.”63 Finally, federalism valued independent state action, whether of state courts (Hale), state taxing entities (Graves v New York64 ), or state regulators (Palmer). Whereas the Framers used the term “federalism” to refer to a robust national government,65 Frankfurter’s conception of federalism emphasized the continued vitality of the states. In other words, for an eighteenth-century American, the novel point in federalism was the active role of the national government. Federalism continued to have connotations of centralization at the expense of the states into the twentieth century.66 By contrast, for Frankfurter, federalism was to be invoked to preserve and protect the states from being supplanted by national action.
Frankfurter’s first major innovation in the field of judicial federalism was to limit the power of federal courts to enjoin state courts. The Anti-Injunction Act had long limited the federal courts’ power in this area, prohibiting the issuance of injunctions by a federal court against proceedings in a state court.67 But there had always been a few exceptions to the scope of coverage of the Anti-Injunction Act, some built into the Act itself and others recognized by the courts. In Toucey v New York Life Insurance Co,68 the Court heard a case about the limits of the so-called “relitigation exception” to the anti-injunction rule. The case turned on whether federal courts could enjoin state court litigation of matters that had previously been decided by a federal judgment.69 Writing for the Court, Frankfurter said that the relitigation exception did not exist, again grounding the rationale in federalism.
The Anti-Injunction Act, according to Frankfurter, “is not an isolated instance of withholding from the federal courts equity powers possessed by Anglo-American courts.”70 Instead, he said, it is part of the “delicate adjustments required by our federalism,” pursuant to which “Congress has rigorously controlled the ‘inferior courts’ in their relation to the courts of the states.”71 Frankfurter embarked on a detailed examination of the legislative history of the 1793 act in which the Anti-Injunction Act originated.72 Frankfurter admitted that the purpose of the Act was really not federalism per se: “Much more probable is the suggestion that the provision reflected the prevailing prejudices against equity jurisdiction.”73 That didn’t stop him from viewing it as a component of federalism.74
Frankfurter managed to get six votes on the Court for his opinion reducing the scope of the exceptions for the Anti-Injunction Act, all in the name of “our federalism.” But Justice Stanley Reed, in a dissent joined by Chief Justice Harlan Stone and Justice Owen Roberts, complained that Frankfurter had disregarded or discarded decades of precedent: “We think it may be accurately stated that for more than half a century there has been a widely accepted rule supporting the power of federal courts to prevent relitigation. There are adequate precedents directly in point and others which recognize that the rule exists and is sound.”75
The decision in Toucey surprised commentators, who viewed it as upsetting substantial law that (they had thought) was settled.76 Congress too was surprised, and a few years later, in 1948, explicitly rejected Toucey’s result, adding the words “to protect or effectuate its judgments” to the exceptions to the Act.77 As the reviser’s note explained, “[T]he revised section restores the basic law as generally understood . . . prior to the Toucy [sic] decision.”78 And that is where matters stand today: “[F]ederal courts can enforce the doctrines of claim and issue preclusion by enjoining proceedings in state court that would run afoul of those doctrines.”79 Frankfurter thus failed to significantly cut back the law of injunctions through judicial interpretation, but it was not for lack of trying.
Much more durable was Frankfurter’s opinion in Pullman. Pullman established the principle that federal courts should abstain from deciding a constitutional issue when the case involved an unsettled issue of state law, the resolution of which could remove the necessity of deciding the constitutional issue. The case involved a requirement by the Texas Railroad Commission that all railroads with Pullman (sleeper) cars employ a white conductor. There was a statutory argument that the Commission lacked authority to make this requirement and a constitutional argument that the regulation violated the Equal Protection Clause.80
Frankfurter thought it inappropriate for the federal court to decide a constitutional issue when construction of a state statute could resolve the issue in such a manner so as to avoid the constitutional question. And the meaning of the state statute was a matter for the state courts, not the federal courts: “The last word on the meaning of Article 6445 of the Texas Civil Statutes, and therefore the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the [S]upreme [C]ourt of Texas.”81
Frankfurter recognized that he was dealing with judicial equity powers, but he integrated federalism into the equity calculus: “Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies.”82 Frankfurter synthesized a long line of prior cases about equity power into this federalism rubric. “These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, ‘exercising a wise discretion,’ restrain their authority because of ‘scrupulous regard for the rightful independence of the state governments’ and for the smooth working of the federal judiciary.”83 Accordingly, the rule in the Pullman case was presented as the employment of the federal courts’ equitable powers “in furthering the harmonious relation between state and federal authority without the need of rigorous congressional restriction of those powers.”84
Frankfurter would later double down on the federalism rationale. In Louisiana Power & Light Co v City of Thibodaux,85 he recognized that Pullman and subsequent abstention cases had been equity cases. But he insisted that the abstention principle was not merely “a technical rule of equity procedure.”86 The abstention cases, he said, “reflect a deeper policy derived from our federalism.”87 Accordingly, he was willing to apply the abstention principle to an eminent domain proceeding that he recognized was not a traditional equitable proceeding.88 The City of Thibodaux had initiated expropriation proceedings against an out-of-state corporation’s property and the corporation had removed the case to federal court.89 It was appropriate, Frankfurter wrote for the majority, for the federal court to stay proceedings to allow the state supreme court to construe the relevant expropriation statute.90 Eminent domain was a “sovereign prerogative,” Frankfurter noted, and it was accordingly respectful of the sovereignty of the states in the federal system to allow them to construe their statutes first.91
Pullman abstention remains good law to this day. After its introduction, other abstention doctrines have also multiplied and “our federalism” became a central organizing principle of the Supreme Court’s jurisprudence on federal jurisdiction, particularly as it came into contact with state court proceedings.92 Perhaps most famously, Justice Hugo Black invoked “our federalism” in Younger v Harris,93 which established the principle that federal courts should abstain from enjoining an ongoing state criminal proceeding.94
Justice Frankfurter’s thoughts about federalism developed before he came to the Court. As a young lawyer coming of age in the Progressive Era, he began his career by engaging in a debate over the place of the courts in the American system of government that would shape the rest of his career. But the link between Frankfurter’s early politics and scholarship, on the one hand, and his theory of federalism, on the other, has received little notice in the substantial scholarly literature. The only major work to date that has seriously studied Frankfurter’s views on federalism—an insightful article by Professor Mary Brigid McManamon—emphasized Frankfurter’s interest in reducing a crowded docket on the Supreme Court.95 This was certainly a relevant, and important, consideration, which this Article will also describe briefly in this Part. But it wasn’t the only consideration that Frankfurter had in mind when he thought about the federal courts. The historical evidence suggests that his involvement with the politically charged fights over federal courts in the 1910s and 1920s were, if anything, even more important in shaping Frankfurter’s worldview.96 This point is surprisingly almost entirely absent from the otherwise enormous literatures on Frankfurter, on federalism, and on the federal courts.97 The point is a crucial one for understanding Frankfurter’s jurisprudence generally, and his thinking about federalism and his invention of abstention in particular. This Part introduces the Progressive politics surrounding the courts that informed Frankfurter’s thinking.
Frankfurter entered the legal profession in the Progressive Era, when the legitimacy of the federal courts was hotly contested. The judicial history of the first few decades of the twentieth century has become known as the “Lochner era.” The idea that the courts were generally conservative and hostile to state regulation was something of a Progressive morality tale. Recent scholarship has shown that federal courts were not as hard-headed in opposing Progressive regulation as the Progressives made them out to be (and correspondingly, that Progressive reform legislation was not as benign as it was often presented to be).98 That said, the concern that the judiciary was a threat to Progressivism generally was widespread.
The “Lochner era” label encompassed several doctrinal trends. The first was a demanding constitutional scrutiny of state regulatory law. This was the principle embodied in the Lochner v New York99 opinion itself: that the Constitution protected freedom of contract as part of the “liberty” safeguarded by the Due Process Clause of the Fourteenth Amendment, and that this rendered invalid state regulations on the market.100 In Lochner, the Court struck down a state maximum hours law.101 In his dissent in Lochner, Justice Oliver Wendell Holmes Jr famously accused the Court of establishing laissez-faire economics as constitutional law.102
A second issue—distinct from the decision of Lochner but equally characteristic of the era, and equally formative of public attitudes toward the courts—was the use of the labor injunction.103 The injunction rose to prominence in the 1880s as a potent tool to restrain labor.104 Continuing on through the 1920s, labor injunctions remained one of the most visible interventions of the courts into political hot-button issues around labor, strikes, and industrial regulations. Some 28 injunctions were issued against labor in the 1880s.105 In 1895, the Supreme Court approved an anti-labor injunction under the Sherman Act,106 opening the floodgates: 122 injunctions were issued in the 1890s after this decision, and 328 were issued between 1900 and 1909.107 As one commentator explained, a simple temporary injunction was all that was needed “because strikes are usually won or lost within a few days.”108
Legislatures responded to the rise of the injunction, and the courts answered. In the process, the courts became still more deeply entangled in the debate about their relationship to the state democratic process. As Frankfurter and his coauthor Nathan Greene summarized the history, Americans were widely troubled by the “expansion of a simple, judicial device to an enveloping code of prohibited conduct, absorbing, en masse, executive and police functions and affecting the livelihood and even lives of multitudes.”109 The historian William E. Forbath explained that “industrial ‘disorder’ and workers’ massive yet articulate defiance of judge-made law gradually persuaded state and national lawmakers and political elites that the old legal order was untenable and that labor’s exiled constitutional claims demanded recognition.”110 Progressive politicians in the nation’s political elite increasingly shared labor’s worries about big business, judicial overreach in the name of property, and an erosion of the First, Thirteenth, and Fourteenth Amendments.111
Labor-backed anti-injunction bills began appearing at state and national levels as early as the 1890s. But state laws that were favorable to labor—limiting injunctions, outlawing contracts that prohibited joining a union, and the like—were frequently struck down by the courts, or at least gutted by narrow construction.112 Most famously, in 1914, Congress passed the Clayton Act,113 which was supposed to rein in the use of the labor injunction by establishing rigorous requirements for the issuance of an injunction.114 But the Supreme Court in 1921 narrowly construed the Clayton Act as merely a restatement of the prior law, removing the teeth from the law.115
In the 1920s, Congress considered a series of proposals to limit the jurisdiction of the federal courts and to limit injunction power.116 In 1928, Senator George Norris introduced a federal anti-injunction bill and began to hold hearings on the use of the injunction. These hearings demonstrated how far labor’s anti-injunction analysis had spread. The anti-injunction law was finally passed in 1932 as the Norris-LaGuardia Act117 (drafted in part by Felix Frankfurter).118 Ultimately the Wagner Act119 would provide more robust protection for labor to associate and engage in collective action.120
Both of these politically contentious lines of cases in the Lochner era (the substantive due process cases and the injunction cases) focused attention on the federal courts. But they weren’t exclusively the domain of the federal courts. Indeed, in terms of the number of cases decided, the state courts were by far the greatest offenders. When Forbath catalogued cases striking down labor legislation during the nineteenth century, the majority of those cases turned out to be state cases.121 A study by the US Bureau of Labor Statistics in 1922 listed some three hundred cases where courts struck down labor-related statutes as unconstitutional during the first two decades of the twentieth century.122 The report noted, “In all but a very few instances the decisions here noted have been those of courts of last resort of the State in which the law was enacted or of the Supreme Court of the United States.”123
In short, the state courts were as much a part of the problem as the federal courts. Indeed, in terms of sheer number of cases decided, the state courts were a greater problem than federal courts. This creates something of a puzzle if we seek to understand Frankfurter’s scholarly focus on the federal courts. Why did he ignore the state courts? Two factors are worth considering: the relative priority of state versus federal law and the relative ease of bringing political accountability to bear on the state courts versus the federal courts.
The predominance of federal law reinforced the dominance of the federal courts, and of the Supreme Court in particular, at the top of the judicial hierarchy.125 The state courts, when left to their own devices, varied in the extent to which they enforced a strict freedom-of-contract jurisprudence.126 There were high profile cases in which state courts struck down state regulations, but this was by no means the universal practice of state courts.127
As for the injunctive cases, here too both state and federal courts were implicated, but the greatest focus was on the federal courts. As one scholar put it:
While the agitation against what was called “Government by Injunction” was to a certain extent independent of the agitation for the exemption of labor from the operation of the anti-trust laws, and embraced not only the federal but also the state courts, the injunction cases which aroused the greatest resentment were either directly or indirectly connected with the Sherman Act.128
Again, this centered the attention on the federal courts, and not the state courts. As Frankfurter and Greene wrote, “The main considerations which underlie both national and state legislative proposals for regulating the use of the injunction in labor controversies are the same. But the federal aspects of the labor injunction are the more important.”129 This also informed Frankfurter’s early interest in federalism as a general concept. He believed that the expanding regulatory power of the federal government, which began in the late nineteenth century with the Interstate Commerce Act130 and the Sherman Act,131 had made the relationship of state and national government a crucial issue for the courts.132
Progressives found federal courts to be the more difficult problem because state courts proved more susceptible to political pressure. The most obvious point is that a great many state judges were elected and were thus sensitive to political pressure. Progressives and other partisans of labor could then use straightforward political channels to put a fear of the people into state court judges.133
Beyond political pressure, there were even more direct means of using politics to express discontent with judicial decisions. A wide variety of proposals were debated in state constitutional conventions during the Progressive Era. They included proposals to abolish judicial review, to require unanimous or supermajority votes of judges to strike down legislative enactments, and to recall judges or judicial decisions.134
The Progressive proposal that most riled the conservative legal establishment was the recall of judges. A high-profile conflict about this issue occurred when Arizona sought admission to the union in 1910. Arizona’s draft constitution included a broad recall provision that covered judges. But this provision, promoted by Progressive Democrats and labor leaders, received pushback from conservative Republicans. When Congress considered the enabling act to grant statehood to Arizona and New Mexico, the issue of the recall provision prompted debate and, ultimately, a veto from President William Howard Taft. President Taft argued that the judicial branch was valuable precisely because it was not bound to majoritarian democracy but was instead charged with upholding legal principles regardless of their popularity.135 But by 1912, seven states had adopted the recall of judges, to the chagrin of conservative lawyers.136
Another alternative was to allow the recall of judicial decisions. President Theodore Roosevelt was an outspoken proponent of this measure (even though he thought that recalling judges was a step too far).137 He viewed this as part and parcel of the increased use of the referendum in state politics—another popular Progressive project. Not only should referenda be employed as a direct method of creating laws, he said, but he also argued that the people should be able to recall judicial decisions by referendum:138 “[W]hen a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong.”139 During the course of his quixotic third-party campaign for president on the Progressive Party ticket, Roosevelt would again advocate for the recall of judicial decisions: “We stand for an upright judiciary. But where the judges claim the right to make laws by finally interpreting them, by finally deciding whether or not we have the power to make them, we claim the right ourselves to exercise that power.”140
In sum, then, the Progressives believed that they had a fairly extensive repertoire of resources to employ against state court activism. They were not always successful, of course. But the situation in the states nonetheless could sensibly appear to them to be considerably different from the situation in the federal courts.
Justice Frankfurter was a Progressive. His understanding of federalism generally, and his abstention jurisprudence in particular, was deeply informed by the political controversies of the Progressive Era, as I describe in Part III.A. While Frankfurter’s scholarly writings on the federal courts often put technocratic analysis of caseloads and judicial administration in the forefront, as Part III.B sketches, he had his eye on the political implications of his judicial reform ideas at the same time. Most strikingly, the contours of Pullman abstention were lifted almost directly from a Progressive Era legislative effort to limit federal court jurisdiction, as I document in Part III.C. This Part concludes by reflecting on why Frankfurter’s Progressive vision for federalism and abstention gained traction even after the concerns of the Progressive Era were replaced by a new set of priorities in what can be called an era of “legal liberalism.”
Lochner and the labor injunction cases provided the backdrop against which Frankfurter developed his views of the federal courts. Telling, perhaps, was his choice of heroes in this period. Frankfurter’s political hero at the beginning of his career was President Theodore Roosevelt.141 After graduating from law school, Frankfurter worked briefly in private practice before going into government (and taking a pay cut), working for Henry Stimson, who had been handpicked by President Roosevelt to be the US Attorney for the Southern District of New York.142 There, Frankfurter cut his teeth as a lawyer in an active office that investigated and prosecuted everything from small-scale fraudsters targeting immigrants to large-scale revenue fraud by major corporations.143 When Stimson was appointed secretary of war by President Taft, Frankfurter went with his mentor to Washington and was given a post in the Bureau of Insular Affairs.144 Frankfurter thought about leaving his job to campaign for former President Roosevelt’s third-party run in 1912.145 In that campaign, Roosevelt made the courts a campaign issue, harshly criticizing courts that put economic interests over “human rights.”146
Through his early work for the president’s appointees, Frankfurter was surrounded by individuals who were deeply concerned with the relationship between Progressive reform and the courts. He shared that concern, and in the years to come it continued to be one of his major interests. Frankfurter was as invested in expanding the space for Progressive legislation as anyone. In 1922, Frankfurter defended a minimum wage law in the case of Adkins v Children’s Hospital,147 losing in the Supreme Court.148
Frankfurter shared the basic Progressive concerns about the courts during this period. In a 1916 article, Frankfurter said that there were two major issues presented to the Supreme Court since the 1890s. The first was the scope of congressional regulatory power under the Commerce Clause (later to become essential to the New Deal’s expansion of federal power).149 The second was the extent to which state regulatory power was limited by judicial application of the Fourteenth Amendment (the Lochner line of cases):
There was thus presented to the Court in greater volume and with unparalleled intensity, the determination of the powers of the Nation and of the State, and a delimitation of the field between them—questions whose decision probably touched the public at once more widely and more immediately than any issues at any previous stage of the Court’s history.150
Frankfurter’s other hero during this time was Justice Holmes. Frankfurter consciously worked to promote Holmes’s reputation as a critic of federal court overreach.151 Frankfurter was fond of quoting Holmes’s characterization of the Lochner period: “When twenty years ago a vague terror went over the earth and the word socialism began to be heard, I thought and still think that fear was translated into doctrines that had no proper place in the Constitution or the common law.”152 Frankfurter saw Holmes’s dissent in the Lochner case as a turning point in terms of articulating the rightful place of courts as deferential to state regulation.153
As Frankfurter observed the anti-labor decisions of the Supreme Court into the 1920s, he continued to voice a Progressive critique. In a series of magazine articles and editorials published in the 1920s, Frankfurter repeatedly endorsed Holmes’s deferential approach to the democratic process.154 Frankfurter rejected Progressive proposals to amend the Constitution to repeal the Due Process Clause or protect child labor. Instead, as historian Brad Snyder has noted, “Frankfurter preferred Holmes’s democratic solution that the Fourteenth Amendment should not be invoked ‘beyond the absolute compulsion of its words to prevent the making of social experiments.’”155
Frankfurter’s basic belief about the federal courts was that they were in the habit of overreaching. Frankfurter thoroughly internalized this standard Progressive position, and indeed by the 1920s, helped to shape it. His own spin on the position was distinctive. Unlike some Progressives, Frankfurter identified with the federal judiciary such that he was still anxious to preserve the prestige and autonomy of the federal courts—even as he sought to rein in what he saw as abuses. This concern with protecting the interests of the federal courts could be seen in the way that Frankfurter often coupled the Progressive critique of the courts with another theme that motivated conservatives as well: reducing the workload of the federal courts in order to improve judicial quality.
The caseload of the federal courts grew enormously from the 1870s into the twentieth century. In his influential book, The Business of the Supreme Court, Frankfurter and his former student, Professor James M. Landis, chronicled one aspect of this story in detail: the dramatically expanding caseload of the Supreme Court. A recurring theme of the book was that the Court was subject to human constraints. Supreme Court justices would turn out subpar work when overtaxed with the heavy burdens of riding circuit (in the early days of the Court) or of excessive caseloads (in the later era of the Court). This principle, that an overworked court is less effective, resonated with such conservative jurists as then-Chief William Howard Taft156 as well as with Progressives. But for Progressives, the reduction of Supreme Court caseload nicely dovetailed with the objective of reducing federal court interference with regulation.
Frankfurter put both of these interests together in his written works in the 1920s. In his explanation of the political discussions about the modification of federal jurisdiction, one can catch glimpses of the basic considerations that would motivate some of Frankfurter’s later federalism jurisprudence:
The continuous effort of twenty years to enable the federal courts to cope with mounting litigation by reforming their cumbersome and wasteful organization was paralleled by an equally vigorous movement to enable them to do their work by reducing the range of their business. For twenty years the Congressional Record registers this attempt to limit jurisdiction. The more moderate proposal was to increase the pecuniary amount necessary for resort to the federal courts. The more far-reaching remedy was the old attempt to remit litigation affecting foreign corporations to the state courts.157
The theme was repeated in another article a year later, in which Frankfurter observed (favorably) that there had been repeated calls for “a reexamination of the present scope of federal litigation,” with the goal of “shutting off at its sources business that eventually reaches the Supreme Court.”158 One of the key aspects of this effort was the reduction of federal jurisdiction in favor of state jurisdiction: “This involves relinquishing of federal concern over conduct more appropriately left to state action as well as providing for trial in state courts of cases now exclusively entrusted to United States courts.”159 It was a theme he would return to again,160 one of obvious importance to the development of abstention.
In most of his scholarly work, Frankfurter emphasized his technical expertise and downplayed his political commitments. His account of the jurisdiction-modification plans underplays the Progressive political overlay that provided much of the excitement—and controversy—behind the congressional proposals.161 For the many efforts to modify the jurisdiction of the federal courts in the first decades of the twentieth century there were two primary motivations, and Frankfurter sometimes emphasized one or the other. Some proposals were simply an effort to cope with mounting litigation. But others were motivated more directly as responses to the substance of the federal courts’ most politically charged decisions. Frankfurter of course recognized this.
To take just one example, Frankfurter was troubled by the fact that asymmetric review of state court decisions by the Supreme Court led to geographical disparity in the application of substantive federal (constitutional) law. Especially important on this topic were a series of cases about worker’s compensation. In 1911, the Supreme Court indicated that worker’s compensation laws would pass scrutiny under the Due Process Clause.162 But then New York’s high court played the anti-regulatory role. Its 1911 decision invalidating the first American worker’s compensation law163 attracted considerable national attention.164 But the Supreme Court could not review the decision because the New York court had “vindicated” a federal right, and under the statute governing Supreme Court review of state court decisions, such vindication was unreviewable. The Washington Supreme Court later affirmed the constitutional validity of similar workers’ compensation legislation.165 As Frankfurter and Landis explained, there was “a wide-spread feeling that, in practice, constitutionality turned on geography.”166 Supreme Court review could ensure that the Constitution was at least interpreted uniformly across the nation. But simply expanding the federal appellate power was not a satisfactory solution, for that would simply increase the burdens on the federal courts. Certiorari jurisdiction for the Supreme Court was a solution proposed by conservative members of the bench and bar.167 Congress passed expanded certiorari in 1916, and it remarkably did so without debate and without any serious opposition, as Frankfurter noted with satisfaction.168
While the move toward greater certiorari jurisdiction helped, the concern about federal caseloads continued into the 1920s. What Frankfurter seems to have learned from his careful study of the ongoing debates about federal courts was that Progressives and conservatives shared a concern that the federal courts, and perhaps especially the Supreme Court, were doing too much. The Progressives were more concerned about the substance of federal law standing as an obstacle to regulatory experimentation; legal conservatives were more concerned about the burden on the courts.169 Frankfurter himself believed that the federal courts were an important institution, and so he shared both concerns.170 To put it differently, while the Progressive position was political, the concern about overburdened dockets was a position that had bipartisan appeal.
Frankfurter’s interest in the legislative efforts to rein in federal court jurisdiction provided him with more than a background for his own thought about federalism and the courts. In at least one case, it provided Frankfurter with a concrete approach to keeping cases in the state courts—an approach which he imported directly into his abstention jurisprudence.
In 1910, the House of Representatives considered an amendment to a bill that would have restricted the federal courts’ injunctive power. Under the proposed amendment, the district courts would have been prohibited from taking jurisdiction of suits “to suspend, enjoin, or restrain the action of any officer of a State in the enforcement, operation, or execution of a statute of such State, upon the ground of the unconstitutionality of such statute.”171 Frankfurter described this proposal in an article some sixteen years later.172 The language of the amendment is not exactly pellucid. It seems to focus on federal injunctive power in the situation where that power is premised on the unconstitutionality of a state statute. To explain the purpose of the amendment, Frankfurter quoted Democratic Representative William A. Cullop of Indiana:
The amendment does not destroy the constitutional right of any citizen to have an investigation of his cause in a Federal court. . . . This simply gives the State courts the right to construe their own statutes before the Federal courts construe them in given cases, in order that the doctrine of the State court in the construction of a statute may be before the Federal court when it is called upon to review the statute.173
The amendment was ultimately rejected, according to Frankfurter, not on its merits but as a political strategy in order to keep the issue from distracting from the other reform items on the bill to which this amendment had been added.174
In his written description, Frankfurter did not flag the charged political dynamics of this proposal. But the House debate makes it quite clear that of central concern to several representatives was the interpretation of “police power” regulations—in other words, exactly the kind of matters that were central to the Lochner line of cases. “The purpose of his amendment is to have the State[ courts] construe their own statutes before they are construed by the Federal courts, is it not? . . . Especially statutes which create police regulations . . . [s]uch as fixing fares, regulation of charges, and so forth,” Representative Cullop asked in one debate.175
Frankfurter may have had something like this in mind when he suggested in 1928 that the appropriate balance between federal and state courts would take into account specific kinds of issues.176 Frankfurter argued that the distribution of responsibilities among these different judicial systems was a matter of “practical sentiment,” of pragmatic evaluation.177 The details of the proper distribution would vary depending on the issue: “Some federal rights are readily adapted to enforcement by state tribunals; others are clearly meant for the federal courts. Some federal rights involve no lively local interests; others are heavily enmeshed in conflicts between state and national authority.”178
Whatever Frankfurter was thinking in 1928, Frankfurter’s opinion in Pullman put into effect Cullop’s proposal almost precisely. The holding of Pullman is that federal courts should abstain when they are faced with an unsettled issue of state law, the resolution of which might remove the necessity of deciding the federal constitutional issue.179 Alternatively, it could be articulated in Cullop’s words as “giv[ing] the State courts the right to construe their own statutes before the Federal courts construe them.”180
The approach that Frankfurter would adopt in his abstention jurisprudence was essentially identical to the legislative proposal that Frankfurter himself wrote about in his study of the federal courts. This seems more than mere coincidence. It provides strong circumstantial evidence that Frankfurter’s later federalism jurisprudence should be seen as a development of his observation of the federal courts’ politics in the first decades of the twentieth century.
Federalism is not the only issue for which the Progressive Era informed Frankfurter’s jurisprudence. The most familiar and distinctive element of Frankfurter’s judicial philosophy, his commitment to judicial restraint, stems from the same source. Part III.D.1 explains the parallels between Frankfurter’s commitment to federalism and his commitment to judicial restraint. Frankfurter believed that one of the lessons of the Lochner era of jurisprudence was that courts should generally refrain from striking down democratically enacted legislation. While the Lochner-era courts generated controversy by striking down Progressive regulatory laws, Frankfurter carried the principle into his jurisprudence on civil rights and civil liberties. Many of Frankfurter’s colleagues on the Court rejected his philosophy of judicial restraint and seemed to be put off by Frankfurter’s tendency to craft his jurisprudence in the shadow of the Progressive Era. Justices Hugo Black and William O. Douglas in particular engaged in a long-running and sometimes acrimonious debate with Frankfurter about this subject. 181
Strikingly, federalism was an area where Frankfurter was able to win over some of his fellow justices, as I describe in Part III.D.2. This raises another question: Why were Frankfurter’s ideas about federalism successful while his views on judicial restraint were not? One might have thought that they would either succeed or fail together, given that both are derived from Frankfurter’s view of the courts in the Progressive Era.
Part III.D.3 suggests one part of the answer. Drawing on recent cultural and intellectual history, it briefly describes what we can call the “New Deal federalism fad.” While full development of this point would require a book, this short Section serves as a reminder of federalism’s flexibility and relevance to different constituencies for different reasons. Frankfurter’s federalism was motivated in large part by his formative experience in the Progressive Era. The New Deal federalism had its own flavor, an effort to integrate localism with the national development vision of the New Deal state. It was called at the time a “New Federalism.”182 A full exploration of how Frankfurter’s vision of federalism convinced his colleagues would require detailed studies of both jurisprudence and interpersonal relationships. But for now, it’s worth simply observing, as a starting point, that new ideas about federalism helped facilitate the rise of New Deal liberalism.
Frankfurter’s vision of judicial restraint originated in the same experiences with Progressive judicial politics that informed his thoughts on federalism. Most of his colleagues abandoned judicial restraint during the Warren Court years.183 But federalism lived on. The practical relevance of federalism to the New Deal era helped to facilitate federalism’s transition from Progressivism to liberalism.184 The simple fact is that Frankfurter’s federalism jurisprudence wasn’t quite as out of touch with his times as some of his other positions on the Supreme Court were.
From the evidence surveyed, one can put together the pieces for a possible way of understanding Frankfurter’s long-term vision of federalism in his jurisprudence.185 Frankfurter internalized the belief that the federal courts posed significant risks of harm if they interfered with democratically enacted legislation. Judicial restraint was a virtue. Still, it was not a value that could be easily protected by legislation—even if desirable subject-matter restrictions, like those in the Clayton Act, were readily subverted. But both conservatives and progressives could agree on trying to reduce the scope of federal judicial activity if the objective was articulated in a palatable and nonpartisan manner, such as when it was described as an effort to clear crowded dockets.
In federalism, Frankfurter found an abstract principle that could support cutting back on federal court decisions. Frankfurter’s tendency to invoke the general principle of federalism was informed by his background belief that federal jurisdiction has very little constitutional specificity. For example, in an article coauthored with then-student James M. Landis, he explained his belief that “the Constitution has prescribed very little in determining the content, and guiding the exercise, of judicial power.”186 This is not to suggest that Frankfurter was insincere in his commitment to federalism.187 But it is to suggest that, particularly in the abstention context, Frankfurter was strategic in his deployment of the concept. He used it to carve out a limit on the federal courts’ jurisdiction that legislators had tried and failed to provide during the Progressive Era.
So far, this story parallels that told by other scholars about Frankfurter’s civil rights jurisprudence. Frankfurter’s appointment to the Supreme Court had been greeted with enthusiasm by liberals, who expected Frankfurter to emerge as a model liberal justice.188 As it turned out, however, Frankfurter did not support the rights-based jurisprudence that was becoming a hallmark of legal liberalism in the middle of the twentieth century. Instead, he stuck to the lessons he had learned in the Progressive Era and repeatedly urged his colleagues on the Court to give greater deference to the democratic legislature.189 In this, Frankfurter disappointed his earlier liberal supporters and clashed with many of his colleagues. Frankfurter was a relic of an earlier age, a Progressive who had failed to make the transition to liberalism.190
Frankfurter’s vision of federalism (with abstention as a concrete application of this principle) was consistent with his Progressive commitments. But unlike his more directly stated views on deference to legislatures regarding the subject of civil rights, Frankfurter was able to convince his colleagues to sign on to the idea of judicial federalism. It was not an idea that the Court had articulated before. But it was an idea that survived the Progressive-to-liberal transition in a way that judicial restraint generally did not.
Justice Black’s reaction to Frankfurter’s Progressive ideas is a marker of the difference between the reception of Frankfurter’s notions of judicial restraint and federalism. Black became well-known on the Court as an absolutist about the Bill of Rights: he was adamant about the judiciary’s responsibility to enforce the Bill of Rights as law without any qualification. He and Frankfurter clashed repeatedly on this point and their interpersonal relationship was delicate and often acrimonious.191 Yet, despite the fact that Frankfurter’s federalism arguments for abstention mirrored the reasons for judicial restraint more generally, Black bought into the idea of abstention. He would ultimately go beyond Frankfurter in creating the most familiar abstention doctrine in Younger v Harris, using Frankfurter’s own phrase, “Our Federalism”192 —though without crediting Frankfurter.193
Characteristically, once Black accepted the principle of federalism in the abstention context, he was more systematic in applying it than Frankfurter. They divided over the issue early on in the 1943 decision Burford v Sun Oil Co.194 Black, writing for the majority, built on Pullman to hold that the federal court should abstain from deciding a case when its decision would run the risk of disrupting a complex state regulatory scheme.195 Black claimed that this was an application of the principle in Pullman that a federal court exercising its equitable powers should do so in a manner that would “further[ ] the harmonious relation between state and federal authority.”196 The extension was facially a sensible one, but Frankfurter would have none of it.
From one angle, Frankfurter’s position in his Burford dissent was ironic. He would apply abstention principles to protect state adjudication in federal question cases, where one might have thought that it would be most appropriate for federal courts to adjudicate state matters. But he would not apply abstention principles to the diversity cases where state law controlled due to Erie Railroad Co v Tompkins.197
But, in fact, Frankfurter’s position made a great deal of sense. If the goal of abstention was, as I have argued, to reduce the opportunities for the federal courts to issue federal injunctions and set constitutional precedents, then the federal question cases were the problem cases. Just five years before, Erie had established that federal courts had to apply state substantive law in diversity cases.198 Justice Louis Brandeis in Erie had been pursuing the same Progressive objective as Frankfurter.199 So Frankfurter would have no reason to think that abstention was needed to accomplish his objective in the diversity context.
In his dissent in Burford, Frankfurter argued that it mattered that the case was brought as a diversity action, and that in such a context the federal courts were directly charged with the task of deciding matters of state law.200 In other words, the constitutional avoidance rationale that had figured so prominently in Pullman was missing, and Frankfurter thought that the Court should have relied upon that fact to distinguish Burford and refuse to abstain.
In any case, though, it was Black who created the most familiar of the abstention doctrines, and he did so by relying on Frankfurter’s federalism theory. In a majority opinion written by Black in Younger, the Supreme Court held that federal courts should abstain from exercising their jurisdiction when necessary to avoid interfering with ongoing state court criminal proceedings. Black wrote that the “sources of the policy are plain”201 and proceeded to offer two bases for the abstention principle. Frankfurter’s influence was immediately apparent. The first source of justification for abstention was the historical tradition of the chancellor’s discretion in equity.202 The second and “even more vital consideration” was “comity” or federalism:
[T]hat is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.203
Black then invoked the phrase that Frankfurter himself had first introduced to the Court: “This, perhaps for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism.’”204 The scope of Younger abstention, premised on “Our Federalism,” applies now not only to state criminal proceedings (covered by the original decision) but also to state enforcement actions from private suits (such as contempt proceedings)205 and enforcement actions analogous to criminal proceedings (such as public nuisance cases).206 Black gave Frankfurter no credit, not even including a citation to Pullman. But when it came to Black’s justification for abstention, Frankfurter had been there first.
An entire article could be written to flesh out the attitudes of the other justices toward federalism, and to explain why judges who did not agree with Frankfurter on judicial restraint as a general matter might have found the federalism ideology persuasive. For present purposes, it will suffice to note three points about the transition from Progressivism to liberalism, a transition which many scholars associate with the New Deal.207
First, federalism survived the New Deal period without much political controversy. The New Deal’s liberal political economy of a large and active federal government proved quite able to function in tandem with local and regional administrations. If the New Deal marked a new era of big government, in other words, it was one that came to rely on federal-state cooperation.208 (This is at odds with the association of federalism with “small government,” as was common in the Rehnquist era, for example.209 ) In contrast, the debate about judicial engagement and activism was at the center of national politics, thanks to President Franklin D. Roosevelt’s court-packing plan.210 Frankfurter’s inclination was to defer to the executive on court-packing, a move that embittered his relationship with his mentor, Justice Brandeis, and arguably affected his relationships with colleagues when he joined the Court.211 That federalism did not enter into such a fraught political and ideological fight was probably helpful.
Second, a fad for localism meshed nicely with the vision of federalism that Frankfurter articulated. In the 1920s and 1930s, as Professor Jessica Bulman-Pozen has noted, “[a] variety of proponents self-consciously embraced regionalism as an answer to looming ‘vaster and vaster federal bureaucracies’ and a ‘centralizing state.’”212 Many leading New Dealers sought to construct linkages with traditions of localism in order to provide cultural rootedness for their programs and avoid the accusation that their social programs were simply top-down impositions. One example of this kind of thinking in action was found in the Tennessee Valley Authority (TVA) project, run by Frankfurter’s protégé David E. Lilienthal. Lilienthal had been a student of Frankfurter’s at Harvard and then obtained a job in the Roosevelt administration on Frankfurter’s recommendation.213 Lilienthal believed that the future of an advanced liberal society lay in combining centralized expertise with localized inputs and controls. It was this combination that he endeavored to put into action with the TVA, though the project in fact fell far short of his goals.214
Lilienthal’s attempt at implementation may have been unique, but his sentiment was not. There was robust cultural movement for localism in America in the 1930s that carried forward into the 1940s and beyond. Historian Daniel Immerwahr has documented this tendency in academia, in government, and in popular culture.215 Bulman-Pozen has similarly documented widespread interest in regional units of American society, suggesting that Americans sought to avoid the excessive homogenization of American culture and society in the face of a growing federal government.216
Writing in 1938, Professor Jane Perry Clark identified a vast array of formal and improvised practices of cooperation and collaboration between national and state governments to effect policy objectives. She identified this as a “New Federalism.”217 Reviewing the book in the Harvard Law Review, Professor David Riesman applauded Clark for revealing the wide extent of national-state cooperation already in practice.218 He hoped that it might mark a path forward that would transcend the usual divisions between the “sloganeers” of “states’ rights” and “centralization.”219 Riesman opined that “[c]ooperative federalism finds support in our constitutional tradition (as well as in our constitutional law).”220 He praised its practical potential for administering federal policies on a state level, and also its democratic virtue in giving space for “autonomic forces.”221 Riesman was a star student of Frankfurter’s who had recently completed a clerkship (on Frankfurter’s recommendation) with Justice Brandeis,222 so Frankfurter certainly read the review. He too was evidently impressed with Clark’s work, and cited it in his opinion in Palmer.223 For our purposes, the basic point is that Frankfurter’s invocation of judicial federalism was not a mere aberration, but gave judicial expression to a sentiment with considerable cultural currency.
Third, Frankfurter’s judicial federalism deferred to state courts, unlike his more general deference to state legislatures in civil rights cases. Whatever doubts the federal courts may have had about the state courts, it may have been easier for liberal judges to defer to a court than to a legislature. One of the lessons that legal liberals took from the court-packing fight was that the judiciary was an important check on politics.224 If one thought that the role of courts was (at least in part) to provide an independent check on the political process,225 one kind of court (federal) could defer to another kind of court (state) without threatening the fundamental role of courts in the system.226 But deference to legislatures could be seen as an abdication by the courts of their essential role. Frankfurter’s judicial federalism theory would have been at least more generally in accord with the principle of judicial competence so central to legal liberalism227 than his broader deference to democratic legislatures.
Frankfurter’s federalism jurisprudence was deeply informed by the Progressive Era. But it was also in tune with an important line of thought in the New Deal era. This was doubtless helpful in gaining traction for Frankfurter’s federalism ideas. A detailed account of how justices like Black thought about federalism will have to await another paper. But for the moment, the New Deal context at least provides clues as to why Frankfurter’s federalism jurisprudence managed to persuade his colleagues in a way that his judicial restraint theory did not.
Frankfurter’s career spanned a divide in the politics of federal courts. He grew up in the era of Progressivism. There were many divisions among Progressives, but Progressives generally shared skepticism about courts interfering with legislative reforms. They tended to dislike rigid constitutional rights, distrust federal courts, and preferred for matters to be worked out through politics rather than through legal decision.
Frankfurter finished his career in the era of legal liberalism.228 Legal liberalism can be thought of as an approach to the courts that valorized and celebrated judicial protection of individual rights. In many ways, this orientation toward the federal courts could hardly have been more opposed to the Progressive Era distrust.
In Justice Frankfurter’s hands, federalism became a constitutional value that provided the Supreme Court with a rationale to restrain the jurisdiction of the federal courts. The purpose for this doctrinal innovation was connected to a particular political perspective on the judiciary. A clear understanding of this history provides the first step for analysis of abstention’s merits.229 The context in which Frankfurter created federalism-based abstention is different from our own; his motives may have differed from ours. There is always the risk of a genetic fallacy in criticizing a current doctrine based on the history of its creation. Still, the history of its creation can inform contemporary analysis.
The history can provide a jumping-off point for at least three different futures for federalism-based abstention. Two of them are cautious or critical about abstention. The history of federalism-based abstention should remind originalists that the doctrine is only loosely connected to the constitutional text, a problem considered in Part IV.A. An originalist future for abstention would basically maintain the Supreme Court’s current status quo, limiting abstention’s application to equitable cases. The history should meanwhile remind legal liberals that abstention was designed to provide federal courts an “out” when called upon to adjudicate issues of federal constitutional law (in tension with the rights-protecting theory of the federal courts held by many legal liberals). A legal-liberal future might cut back on abstention’s application, analyzed in Part IV.B. But a third possible future for federalism-based abstention is to embrace a robust, Frankfurterian version of the doctrine as a means of curbing federal court power and, at least on the margins, putting more adjudicative power in state courts. This possibility might appeal to modern progressives who are wary about a largely conservative federal judiciary as well as to conservatives who want to promote judicial restraint, and it is considered in Part IV.C.
In the Constitution, the subject matter jurisdiction of federal courts overlaps with that of state courts. But there is no textual hook in the Constitution for the idea that federal courts should sit out a case in order to allow a state court to adjudicate an issue. The Tenth Amendment provides merely that the states retain powers not explicitly delegated to the federal government, which is nothing more than restating explicitly what is already implicit in the Constitution’s text and structure—the familiar theory that the Constitution contains enumerated powers.230 It’s possible that there is something more to the Tenth Amendment—that it constitutes a substantive outer limit on federal power—but that idea is controversial.231 The Supreme Court does not endorse that position.232 The most straightforward reading of the Constitution is that federalism will come before the federal courts as a substantive problem. For example, the federal courts have to decide, as a matter of substantive constitutional law, when the national government has—or lacks—the power to regulate a given subject.233 But other than the Tenth Amendment, there isn’t really a constitutional hook to hang a federalism theory on. In sum, the Constitution provides pretty sparse grounds for abstention doctrines.
In the absence of direct textual support, originalists of various stripes will (sometimes) look to historical practice to inform their constitutional interpretation.234 This is where Frankfurter comes in—eventually. For most contemporary originalists, those who subscribe to the “original public meaning” approach,235 practices close in time to the adoption of the Constitution are of greatest importance in that they might provide some evidence of the meaning of key terms in the document at the time of enactment.236 (Some textualists might value historical practice less and prefer instead to simply look for historical evidence of the meaning of the words;237 original intent originalists—a small minority now—might value historical practice more.238 ) When it comes to abstention, the early history doesn’t really help provide an originalist pedigree to federalism-based arguments. There is existing scholarship that shows early exercises of discretion by the courts,239 but not based on federalism. There are reasons to think that courts in equity cases could abstain from issuing a decision. But this does not rely on federalism considerations at all.240
The history of Frankfurter’s federalism-derived abstention doctrine doesn’t help an originalist connect it to the constitutional text. It also doesn’t help in terms of tying it to deep historical practice. Rather, it does the exact opposite. The history presented in Parts I–III of this Article emphasizes the novelty of Frankfurter’s invention. For originalists who believe that legitimate constitutional interpretation requires ascertaining the meaning of the Constitution at the time of its adoption, Frankfurter’s originality is a liability.
Originalists could respond to this critique by ending abstention in actions at law, where federalism considerations would necessarily have to operate outside the framework of equity. Originalists can accept equity-based abstention as firmly rooted in the common law and equity tradition in which the federal courts were created. Within the equity framework, a court could even take into account federalism and comity. The equity maxim is that “equity follows the law”;241 federalism is part of the law in the general sense that the Constitution creates a system of limited (enumerated) powers on the part of the federal government and retained (unspecified) powers by the states. Federalism principles could be weighed when considering whether to grant an injunction. But federalism does not provide a sound, text-based reason for abstaining from actions at law.
This originalist future for abstention would formalize the cautious, modest approach to abstention that the Supreme Court has already seemed to favor. In Quackenbush v Allstate Insurance Co,242 the Court declined to apply Burford abstention to an action at law.243 The assumption seems to have been that abstention was limited solely to the context of equity. The Court was not clear as to whether this applies across the board to all forms of abstention, and it has never definitely ruled out the possibility of staying federal actions at law on an abstention theory.244 The originalist approach sketched in this Section would generalize the idea in Quackenbush and rule out the possibility of abstaining in actions at law.
There is a long tradition of legal scholarship that emphasizes the importance of the judiciary protecting individual rights. This tradition has sometimes been labeled “legal liberalism.” The term is imprecise but will do as a placeholder for present purposes. Legal liberals believe that it is an important responsibility of the judiciary to enforce individual rights and to protect the “discrete and insular minorities”245 who might be vulnerable to the vicissitudes of the political process.246 There are a number of theoretical paths that one could take to arrive at this position. Professor John Hart Ely’s theory of the courts as protecting individual rights in a countermajoritarian manner might be the most influential theoretical statement of legal liberalism.247 The Warren Court’s rights-protective jurisprudence is the classic example of legal liberalism in practice. Legal liberals prefer to have an engaged judiciary, confident and assertive when it comes to individual rights.248
The history of abstention presented in this Article should be troubling to legal liberals in a quite different sense than it troubles originalists. While the originalists might object to the method by which the Court arrived at abstention doctrine, the liberals might be more troubled by the substantive uses of abstention, specifically when abstention is employed to allow federal courts to avoid deciding cases involving federal rights protections.
Pullman is a classic example of the anti-liberal potential of abstention. In Pullman, Frankfurter wrote for a majority that declined to issue a constitutional ruling on the Equal Protection Clause. The Texas Railroad Commission had issued an order that all sleeping cars operating in Texas had to be in the charge of a Pullman conductor, who was white, as opposed to a Pullman porter, who was black.249 Prior to the order, trains with only one sleeping car were in the charge of the porter.250 The order was transparently motivated by race and the trial proceedings included “extensive testimony by white women relating their fear of being alone in a Pullman coach with a black porter without a white conductor.”251 The order was challenged as a violation of the Equal Protection Clause and as a statutorily defective use of power by the Railroad Commission.252
Frankfurter’s opinion for the Supreme Court acknowledged at the outset that the case raised “a substantial constitutional issue.”253 Frankfurter went on to say that the issue was “more than substantial. It touche[d] a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.”254 The theory was that the Texas court might be able to construe the state statute in such a way as to eliminate the constitutional problem. Maybe. But the result was of course to put off deciding the equal protection issue for several years. The most generous reading of the opinion is that it constituted a clever strategic move by Frankfurter: maybe it was a way to provide that the Court wouldn’t fracture over the substantive constitutional question, a way to ensure that the Court wouldn’t take a case until it was ready to decide the matter in a progressive manner, or a way to let public opinion catch up. More troublingly, it may be read simply as a decision to insulate the Supreme Court from a public controversy and to preserve institutional capital on the “sensitive” issue of racial discrimination.
Legal liberals should certainly be troubled by the final possibility. For the legal liberal, a countermajoritarian, rights-protective decision is precisely the kind of decision that courts ought to be making when given the opportunity. There might be reasons to delay making such a decision, but they have to be good ones to overcome the default setting in favor of judicial engagement. And federalism-based reasons for delay ought not to be very persuasive to legal liberals.
Legal liberals might acknowledge that there could be reasons for a court to delay or decline to decide an issue of rights. For instance, there has been a years-long debate about the extent to which courts can bring about social change and to what extent they are bound by existing social mores.255 Depending on their view of that debate, a legal liberal might be sympathetic to a strategy that tries to ensure that the Supreme Court doesn’t decide a case until it is likely to do more good than ill.256 One might see this as a significant countervailing consideration against the default setting of enforcing federal law.
But federalism as an end in itself will often be a dubious reason for not taking jurisdiction to enforce a facially applicable federal law.257 To the contrary, federalism considerations—such as allowing states to set their own policies and chart their own courses—are especially worrisome reasons for denying enforcement of a federal law that protects individual rights.258 One of the main purposes of federal protection of individual rights is, on this account, to work in a countermajoritarian manner. It is to protect the discrete and insular minorities that are not able to protect themselves through political processes. If these conditions apply, one might think that the Supremacy Clause ought to apply to prevent infringement on those rights. It is precisely in the rights-based cases where federalism is an issue that one might think the federal courts should be most assertive and protective of individual rights.
There is some anecdotal evidence that judges are willing to reach for abstention more aggressively in certain types of cases. A study by Professor Theodore Eisenberg reported that judges in Los Angeles seemed to be “straining to abstain” when cases involved challenges to statutes, ordinances, or other official policies.262 The sample of just two years’ worth of cases was too small for the study to draw any firm conclusions, but of the eleven cases in which the issue was seriously litigated, “one was settled” and “three others offered virtually no ground for Pullman or Younger abstention.”263 Of the remaining seven cases, abstention was ordered in six. “In none of the cases was abstention clearly mandated and in some it seemed erroneous,” Eisenberg reported.264 Parity between federal and state courts may very well be mythical in practice.
The history presented in Part III sharpens the point. Legal liberals have been right to worry that abstention would get in the way of protecting federal rights. The story of Frankfurter and the Progressive politics in the background of abstention doctrine show that the failure to protect federal rights was not just an incidental byproduct of protecting federalism. Protecting federalism was, for some Progressives, a way of intentionally reducing the scope of federal rights-protection. It is not too much of a stretch to say that the federalism rationale that Frankfurter created was not built in reliance on a mythical parity. Instead, he advanced the federalism rationale precisely because he believed that parity was a myth. For a Progressive like Frankfurter, the political motivation underlying abstention doctrine seems very likely to have been to avoid constitutional rulings by federal courts. To a legal liberal, this should be troubling: if the federal judiciary’s raison d’être is protecting federal rights, then abstention seems often misguided, if not perverse.
Strands of thought in both progressivism and in conservatism are skeptical of judicial power. There is a long and respected history of judicial restraint that transcends crude political categories. Legal scholars who invoke judicial restraint often use the term to reference incremental development of the law by the case method.265 That’s part of the idea. But there is a still broader sense for the idea of judicial restraint, which is thinking of the judiciary as self-restrained out of respect for other, more democratic branches of government.266 This broader version of judicial restraint is a preference for matters of democratic governance to be resolved through democratic politics as often as possible.267 For these proponents of restraint, Frankfurter’s vision of federalism-based abstention may be appealing.268
Many modern progressives are concerned that federal courts as rights-enforcing bodies have considerable potential to advance conservative causes. For instance, a growing number of modern progressives suggest that modern First Amendment doctrine has become a tool to advance conservative and deregulatory objectives.2269 Many scholars have suggested that the First Amendment has become a modern version of Lochner.270
At the other end of the political spectrum, some conservatives are similarly wary of aggressive uses of judicial power. They share with the progressives old and new a concern about giving too much power to unelected, unaccountable courts. A judiciary willing to issue sweeping rulings purporting to invalidate democratically enacted laws is claiming a lot of power and proceeding in a nonconservative manner. This line of thought was deeply embedded in modern conservative legal thought. Judicial restraint was one of the watchwords of the early conservative legal movement. It goes back at least to the critics of the Warren Court’s legal liberalism: they argued that among its faults was contempt for the democratic process and willingness to legislate from the bench.271 The popularity of judicial restraint has waned in the conservative legal movement in recent years.272 (More are now comfortable with an assertive judiciary when it is enforcing the original meaning of the Constitution.) But there are still conservatives who think that the judicial power is one to constrain and that judicial restraint is a key component.273 And the charge of judicial activism (often including a reference to Lochner) is still a standard in the conservative rhetorical arsenal.274
Advocates of this kind of judicial restraint might favor adjudication by state courts for basically the same reasons that Frankfurter did. First, to the extent that the emphasis is back on economic inequality, concerns about big business having excessive power in American politics, and other issues having to do with political economy, the state courts might again be thought to be the more sympathetic venue. Elected judges might be more likely to take populist positions, for instance.275
Second, to the extent that the federal constitutional law regime is viewed as excessively strict on at least some metrics or in some areas, the state courts are more likely to be lax in their application. In Frankfurter’s era, it was common for Progressives to see the federal courts as more rigidly protective of federal rights and state courts as less so. The same assumption holds true today. The more state courts are able to adjudicate these issues, the less one might expect that rigid federal constitutional rules will be applied in such a way so as to impede the state enforcement scheme. Modern progressives share with their ideological forebears a concern about the use of the federal courts as countermajoritarian and anti-regulatory institutions. Conservative proponents of restraint are also critical of courts expansively enforcing rights claims at the expense of democratic regulations. The basic conceptual move is the same, even though the kinds of regulations that each side wants to safeguard might be different.276 To the extent that progressives and conservatives alike assume that state courts are generally more likely to be sympathetic to regulation and less likely to support strict doctrinal enforcement of constitutional doctrines, abstention on federalism grounds should be popular. A more robust federalism vision of abstention allows more space for states to adopt their own distinctive approaches to regulation. Pullman, Burford, and Thibadoux all can rest on this principle. Younger too fits this pattern in the specific context of criminal law. In other words, modern progressives should be interested in abstention for the same reasons that legal liberals distrust abstention.
A few objections to the use of abstention for strategic, political reasons are worth considering briefly. First, it might seem like abstention can’t make a meaningful policy difference for the kinds of issues proponents of restraint would care about because it has cast the federal court as both the “bad guy” and the “good guy” at the same time. The federal court is the bad guy in the sense that it is the entity that is in need of restraining. And the federal court (or at least the federal judge) must also play the role of the good guy, the one exercising self-restraint to abstain from hearing the case. Surely, the skeptic would say, this can’t be realistic. The solution to this apparent conundrum is that federal courts as a whole might be hostile to some policy that one cares about (they could be anti-regulatory, for instance) and yet a particular judge may be sympathetic to regulation. A pro-regulatory judge in the district court could use abstention to keep some issues out of an anti-regulatory court of appeals.
Of course, the appellate court might reverse and get the issue back into federal court. But it won’t always be able to do this. Here, the standard of review matters: a federal court reviewing an abstention decision de novo could easily reclaim a case for the federal courts if the district judge had abstained in a close case. But a court that reviews abstention decisions only for abuse of discretion would have to defer to the district court’s decision to abstain in the close case. The courts of appeals are split on this issue.277 Some review the issue de novo, providing little space for a federal district court to try to manipulate outcomes about which it disagrees with the court of appeals by applying abstention aggressively.278 But the potential for manipulation is greater where the standard of review is abuse of discretion, as it is in several circuits.279
Second, one could think (as Professor Martin H. Redish argues) that abstention doctrines are themselves violations of the principle of judicial restraint.280 Federal jurisdiction is created by statutes passed by the democratically accountable legislature.281 So when a federal court declines to exercise this jurisdiction on an abstention rationale, it is actually contravening the will of the legislature.282 Well-taken though this argument may be, a defender of abstention might still differentiate the kinds of judicial restraint principles involved. An automatic obedience to the jurisdictional statutes might be restraint. But if one has any skepticism that the jurisdictional statutes are perfectly clear,283 then there’s likely going to be room for second-order judicial restraint principles like abstention. A refusal to take the first stab at an unresolved issue of state law could still be an exercise of restraint.
Third, virtually no one (progressive or conservative) is uniformly hostile to assertive rights protection in federal courts. Modern progressives, for instance, have offered critiques of free speech doctrine and of free exercise doctrine. But to the extent that they support assertive federal court enforcement in other areas (for example, race, gender, or sexual orientation discrimination), they are not likely to offer unqualified support for abstention. If one was to use abstention for maximal political advantage, one would have to decide when and how to apply abstention strategically for some issues and not for others. (This, of course, raises concerns of a different sort—for arguably, the point of neutral principles of law is that they don’t perfectly advance a political agenda.284 ) If Pullman and other forms of abstention are mandatory, it will be harder to tailor this; if discretionary, it could potentially be better to use as a tool on some varieties of federal claims and not others. These are unsettle^d questions.285 For the moment, the main point is that Frankfurter’s politically motivated federalism theory of abstention might still have a constituency.
It is sometimes easy to imagine that a familiar concept like federalism was always a part of American constitutional jurisprudence. A closer examination reveals that this is not the case. State-federal relations may have been a familiar part of American jurisprudence, but the issue wasn’t labeled “federalism” in Supreme Court jurisprudence until Justice Felix Frankfurter did so. The introduction of this concept was not happenstance. Frankfurter’s vision of federalism, and of the federal courts’ proper role in it, was informed by his political commitments and his observations of years of political maneuvering around the federal courts. It was because of his observations in the Progressive Era that Frankfurter believed that federal courts had to be restrained precisely in order to facilitate the development of a robust administrative state. Abstention from interfering with state courts was one way that federal courts could internalize this lesson. And unlike some other aspects of Frankfurter’s judicial philosophy, his interest in judicial federalism successfully made the transition from the Progressive Era to the era of legal liberalism.
This history gives present-day scholars of federalism several possible takeaways. First, at the broadest level of generality, it is a reminder that federalism is flexible and susceptible to use for various political ends. The history of federalism doesn’t point in a single political direction.286 But more troublingly perhaps, it reminds us that federalism is easily manipulated.287 As this history reveals, federalism was useful precisely because it was so capacious, so malleable, and so easily employed in a manner untethered from the original meaning or text of the Constitution (at least as to the causes that Frankfurter sought to advance through federalism rhetoric). Second, and following from the first point, the flexibility and malleability of federalism as a conceptual tool should make legal thinkers concerned with text and original meaning a bit more skeptical about invocations of federalism without a good textual hook. More specifically, the federalism rationale for abstention should be suspect to an originalist precisely to the extent that Frankfurter really was original—to the extent, in other words, that the federalism rationale was disconnected from constitutional text. Third, even assuming that federalism is a good background principle, there are reasons for the legal liberal to be suspicious of its invocation in the abstention context.
This study of abstention has revealed that federalism’s history is complex and deeply political. What one makes of this history depends very much on one’s methodological priors about constitutional interpretation as well as theoretical and policy commitments about the substantive values that ought to be advanced by constitutional law. Depending on those priors, this history can provide support for the elimination of federalism as a distinct rationale for abstention. Or it might motivate others to think more carefully about how to maximally use abstention doctrine to advance particular political or ideological agendas. History does not tell us which of these options to take. But for anyone who cares about the Constitution, federalism, and the federal courts, the history helps us to see how the abstractions of federalism doctrine have been used in the real-world context of contested politics and ideology.