Distributed Federalism: The Transformation of Younger

For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having to defend against or decide them. Younger’s reach is broad. It has forced political protestors (from the Vietnam era to Black Lives Matter) to challenge the constitutionality of their arrests and prosecutions within their state criminal proceedings. The doctrine also has made it difficult to challenge in federal court the constitutionality of serious, routine, and widespread practices impacting indigent criminal suspects and defendants. Only recently have civil rights litigants dared to test Younger. And, lo and behold, federal courts are pivoting away from Younger abstention, granting relief in some cases, and opening the possibility that federal courts could become an important venue for criminal justice reform. This Article argues that courts are rejecting Younger abstention and instead distributing federalism concerns throughout the litigation. This “distributed federalism” approach was modeled decades ago in Gerstein v. Pugh, which powerfully showed that by rejecting Younger abstention, federal courts do not reject federalism. Today federalism is baked into the civil procedure infrastructure and courts’ reluctance—institutional, doctrinal, and federalism-based––to order injunctive relief against state courts. As litigants get past Younger abstention, the new battleground will be the degree to which federalism shapes the scope of constitutional rights and injunctive and declaratory relief. In this new terrain, Younger’s noninterference principle will transform from an abstention doctrine to a remedial tool that helps courts justify the manner and degree of relief that will protect individual rights in state criminal proceedings