Politicians in Robes: The Separation of Powers and the Problem of Judicial Legislation

The following remarks were delivered by Judge O’Scannlain in a lecture at the University of Virginia School of Law, on March 5, 2015. 

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Thank you for inviting me to speak here today, and for the warm welcome. As an alumnus and recipient of an LLM in Legal Process, it is always a pleasure to come back to the Grounds here in Charlottesville, and an honor to be at the University of Virginia School of Law. Those of us in the legal profession know Virginia’s reputation for producing exceptional lawyers, including former law clerks of mine, who have served our country in a great many ways.

Today, I want to discuss how our constitutional structure affects the work of a federal judge.[1] Specifically, I hope to explore a troubling trend in our country by which litigants, the American public, and, I dare say, members of the bench themselves have come to regard the judicial branch as an alternative forum for achieving political goals. Think affirmative action, abolition of the death penalty, abortion, gun control, physician-assisted suicide, or same-sex marriage. The list goes on. This trend, I fear, raises vital questions about the civic health of our country and challenges the constitutional structure our Founders created. 

Before I say any more, let me make clear that I speak only for myself, and not on behalf of the United States Court of Appeals for the Ninth Circuit, the court on which I sit. I must also emphasize that my remarks today should not be construed as considerations or decisions about cases that could come before me. Because the problem I address is quite pervasive, the themes are relevant to many contemporary and salient legal issues that are regularly covered in popular media. But my aim is not to comment on such issues or specific cases. Instead, I hope to undertake a broader analysis of how our constitutional structure speaks directly to the general role of the judiciary in deciding (or deciding not to decide) these questions.

Of course, to say that the judicial power is limited is not to say that it does not exist, and in numerous cases, federal courts must exercise such power. In the specific context of constitutional adjudication—my focus today[2]—courts are often asked to assess the legitimacy of popularly enacted democratic laws. Since Marbury v. Madison, such judicial review has been recognized as part and parcel of what Chief Justice Marshall called the judicial “duty.”[3] Acting pursuant to this duty, courts are regularly injected into contentious social debates as varied and diverse as those just mentioned.

Most troubling is that litigants often bring these cases to the courts only because they do not want to engage the democratic process, or because they have already lost out in the legislative arena. As one scholar has put it, “Recourse to the courts . . . [is] seen as a natural move for interests disadvantaged in majoritarian legislative politics.”[4] “Courts are no longer . . . outside of the policy process but more typically now constitute just another . . . stage in the . . . process of policy formation.”[5] And when judges willingly open their courthouse doors to political litigants seeking to achieve their goals outside the democratic process, litigants take note.

But this was never the view of the judiciary as envisioned by our Founding Fathers. Unelected members of the federal judiciary, as Justice Rehnquist once said, were never thought to be a “council of revision” “with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country.”[6]

Unless a given legislative enactment violates the original understanding of the Constitution, a judge’s striking it down is nothing more than “an end run around popular government.”[7] But how, exactly, is one to distinguish such impermissible “judicial legislation”[8] from the constitutionally legitimate exercise of “the judicial power”?

I suggest that the most effective way to ensure the judicial power is exercised legitimately is to employ a methodology that relies on the Constitution’s text, structure, and history as constraining forces. Without such constraints, judges are nothing more than politicians in robes, free to tackle the social problems of the day based on avant-garde constitutional theory or, worse yet, their own personal preferences. While such jurists may often be well meaning, their approach is inconsistent with our government’s history, structure, and framework, and it threatens the ideal of self-rule that we should so dearly cherish.

Troubling though it may be, one can see why turning to the judiciary to achieve one’s political objectives might be appealing. For one, rather than having to persuade a majority of a bicameral legislature, the President, and the public constituencies these elected officials represent, political litigants can limit their focus to a single trial judge, or two judges out of three on a panel of the court of appeals, or five Justices out of nine on the High Court, none of whom were elected.[9] We know that the constitutionally prescribed process of enacting legislation, involving 536 political players, is difficult and cumbersome—but that is how the Framers designed our system to operate. As my colleague Judge Kavanaugh has put it, our constitutional structure “tilts toward liberty.”[10] Our preference for liberty and self-rule is undermined when the courtroom is opened as an alternative venue for lawmaking. Rather than clearing the carefully constructed “veto gates” that restrain and guide the legislative process, litigants need only win a lawsuit to make their political preferences the law.[11]

But there are serious consequences to this trend, and while some are almost imperceptible, they are potentially explosive. Using the courts to enact public policy, while perhaps effective for political operatives in the short-term, actually threatens, I suggest, the foundational premises of our nation and imposes serious long-term costs.

First, as I will explain in a moment, it violates our Constitution’s structure and our commitment to democratic self-rule. Second, whereas the democratic process allows for the law to change as the will of the people changes, “judicial legislation,” particularly in the constitutional context, tends to freeze the law in place. Once the judiciary strikes down a law as unconstitutional, it can be nearly impossible to reverse this “judicial veto.” Third, unlike legislatures, which represent broad and varying interests, enjoy superior fact-finding and information-gathering abilities, and are, as Madison put it, “sufficiently numerous to feel all the passions which actuate a multitude,”[12] courts must consider the issues and facts as framed only by the specific parties before them. In short, courts do not have institutional competence to decide broad questions of public policy.

Finally, when courts act in the place of the legislature, they create perverse incentives for political actors. As courts demonstrate a willingness to legislate, political litigants and interest groups—finding litigation cheaper and easier than engaging the democratic process—will direct their attention (and resources) to the courts. This weakens democratic responsiveness and undermines the electoral process by which we normally hold political actors responsible for their actions. In contrast, when courts limit themselves to their proper constitutional role, those pushing for policy changes are forced to engage our country’s democratic mechanisms for change.[13]

My lecture today has three main parts. First, I will explore the writings and philosophy of James Madison and his Founding-era contemporaries. Their work product, our great Constitution, speaks to many of the themes I wish to explore today. In particular, I want to demonstrate how the Framers envisioned a limited role for the federal courts that left room for the people to exercise their own self-rule through the democratic branches of government. By making clear that lawmaking is reserved for the people and their representatives—and not the judiciary—the Constitution mandates separation of these powers. Next, I hope to demonstrate that, when considering constitutional cases, an interpretative method that focuses on the text, history, and structure of the Constitution is more effective at protecting the democracy the Framers envisioned. Other interpretative methods, I submit, not only undermine our constitutional structure, but also injure the civic health of our country by enabling and promoting judicial legislation. Finally, I will conclude by offering a few remarks on how the theoretical can be implemented in practice.

I.

A.

To begin, I will return to the basics—the structure of our federal government as outlined in our Constitution. It is axiomatic that ours is a government designed to separate and to divide power. As James Madison wrote in The Federalist No. 47, “[T]he preservation of liberty requires that the three great departments of power should be separate and distinct.”[14] Although the Constitution does not include a specific “Separation of Powers” article, section, or clause, the doctrine is imbedded in the general structure of limited government that the Constitution creates. As the Supreme Court has put it: “The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.”[15]

Each vesting clause, for instance, denotes a specific and distinct grant of government power.[16] Noted constitutional scholar Professor Gary Lawson has explained:

[T]he Constitution’s three “vesting” clauses . . . effect[] a complete division of otherwise unallocated federal governmental authority among the constitutionally specified legislative, executive, and judicial institutions. Any exercise of governmental power, and any governmental institution exercising that power, must either fit within one of the three formal categories thus established or find explicit constitutional authorization for such deviation. The separation of powers principle is violated whenever the categorizations of the exercised power and the exercising institution do not match and the Constitution does not specifically permit such blending.[17]

For instance—and of particular relevance here—Article I, Section 1 states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”[18] Likewise, Article III, Section 2 extends “[t]he judicial Power” to certain “Cases” and “Controversies.”[19] In other words, the Constitution places the power to legislate, the power “to create law,” in the people’s elected representatives and reserves for the judiciary the power to interpret those laws. When courts open their doors to political litigants seeking to achieve their policy objectives via adjudication, it violates the principle of separation that Madison deemed essential to liberty.

The Constitution contains several other provisions (in addition to the Article III Vesting Clause) that separate the judiciary from the legislative and executive branches. For instance, Article III, Section 1 secures for federal judges life tenure and salary protection.[20] This constitutionally mandated job security is not merely a fringe benefit of my job, but is designed to shelter us judges. Because our job is merely to interpret the law in a disinterested and unaffected manner, federal judges are protected from external influences. The judiciary, in other words, is specifically designed to be nonresponsive to political pressures; thus, it should not be charged with effectuating broad-based policy change.

Moreover, when the Constitution does authorize the political branches—that is, the legislature and the executive—to make law, it includes a detailed set of procedures these branches must follow. When federal judges choose to engage in lawmaking in their own right, they render these constitutionally mandated procedures meaningless. As Professor John Manning has argued, “[T]he sharp demarcation of the legislative and judicial powers coincide[s] with the adoption of a carefully designed legislative process—bicameralism and presentment.”[21] Indeed, “[O]n their face, the procedures established by the Constitution for adopting the ‘Constitution,’ ‘Laws,’ and ‘Treaties’ of the United States strongly suggest that they are the exclusive means of adopting such law.”[22]

While we do not have time to discuss all the finer points of Madison’s design, it is sufficient to say that the Framers both knew of and feared excessive legislative power, and therefore implemented precautions against domination by transient majorities. Bicameralism ensures that two houses, with members accountable to distinct interests, must each approve legislation before it is sent on to the President. And presentment serves as an additional check on majoritarian legislative dominance. These processes slow down the enactment of legislation, ensure that laws have sufficient popular support, protect the interests of legislative minorities, and help safeguard the rights of states. In short, the procedural requirements that must be followed before laws are enacted have real purpose and are motivated by substantial concerns. Respecting the principles of separation of powers—here, for instance, by insisting that judges refrain from lawmaking—ensures that these constitutional procedures continue to work their salutary effects.

In its design and operation, the structure of our federal government effectuates a sharp separation of powers. For present purposes, we are focused on the distinction between the legislative branch and the judiciary. Because “all power is vested in, and consequently derived from, the People,”[23] the institution that makes law should be the one closest to “the people.” For that reason, as Chief Justice Rehnquist once remarked, supposing that “the popular branches of government . . . are operating within the authority granted to them by the Constitution, their judgment and not that of [judges] must . . . prevail.”[24]

B.

Obviously, such structure did not come about by chance. Early debates among the Founders shed light on the intentionality behind the limited role for the federal judiciary. In fact, before adopting the current form of Article III, the participants at the Constitutional Convention considered various proposals that would have given the federal judiciary a role in lawmaking. On at least three occasions, the Framers considered and rejected a proposed Council of Revision. Essentially, the Council would have served as an independent body of executive and judicial officials with the power to negate legislation after it passed Congress or the legislative bodies of the several states.[25] Likewise, the delegates to the Constitutional Convention rejected the suggestion to create a Privy Council, composed of executive department officials and the Chief Justice of the United States, that would have advised the President on legal issues that came before him.[26] Finally, the same delegates—and the early Supreme Court[27]—rejected the idea that the federal courts could give advisory opinions to “[e]ach Branch of the Legislature[] as well as the [S]upreme Executive.”[28] In short, in almost every respect, the Framers resoundingly rejected each and every proposal that would have given the federal judiciary a role in the lawmaking process of the federal government or the states.

The Framers’ writings help explain the rationale behind keeping the judiciary separate from the political branches. Madison, again writing as Publius in The Federalist, explained:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than [separation of powers]. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.[29]

And Montesquieu, the great Enlightenment thinker whose political philosophy inspired the Constitution’s Framers like Madison, expressed a similar view, writing:

[T]here is no liberty, if the judiciary power be not separated from the  legislative and executive . . . .   
                There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.[30]

With respect to the judicial branch in particular, Madison’s coauthor, Alexander Hamilton, stated in The Federalist No. 78 that the “general liberty of the people” depended on the judiciary remaining “truly distinct” from the legislature and the executive.[31] Quoting Montesquieu, Hamilton explained that while “liberty can have nothing to fear from the judiciary alone,” our very freedom and right to self-rule “would have every thing to fear from its union with either of the other departments.”[32] And Madison drove home the point by writing that if “the power of judging [were] joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”[33]

At this point, one might object to my account of our constitutional structure, citing to the ways in which the Constitution allows for the blending of some powers.[34] Or, one might say, even where the Constitution separates powers, the document does “not purport to tell us how strict the resultant separation ha[s] to be.”[35] True. But these points were not lost on Madison, who explained in The Federalist No. 47 that “where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.”[36] Thus, he conceded that the idea of separation of powers does not demand that the coordinate “departments ought to have no partial agency in, or no control over, the acts of each other.”[37] Moreover, Madison acknowledged the difficulty of defining the specific metes and bounds of governmental relations: “Experience has instructed us,” he wrote, “that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive and judiciary . . . . Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.”[38] 

However, this blending of powers, as Madison stressed in The Federalist No. 51, is paradoxically a way to ensure the broader and more important goal of separation. According to Madison, the most “expedient” way to maintain the “necessary partition of power among the several departments” is “by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”[39] He continued, saying that by “giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others,” blending of powers may actually help maintain the long-term independence of the three branches.[40]

Centuries later, in Youngstown Sheet & Tube Co. v. Sawyer,[41] the Steel Seizure Case that is perhaps the most famous decision discussing these separation of powers principles, the Justices grappled with this separation-blending dichotomy. Justice Jackson wrote that the “Constitution diffuses power the better to secure liberty,” but that “it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”[42] Such an acknowledgment of the blending of powers, however, Justice Frankfurter responded, should not obscure the broader point that separation of powers is still the default. Justice Frankfurter wrote, “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”[43] Such a warning reminds those of us in the judicial branch that we must not allow our own personal preferences to motivate us to disregard the “fences” that bound our authority. Not only must we be watchdogs for the other branches of government—as in the Steel Seizure Case—but we must also be cognizant of how the structural principles of the Constitution inform our own role.

Indeed, as we have seen, though the separation of powers is a central feature of our constitutional structure, it is not self-enforcing or absolute.[44] The temptation for judges to move beyond the constitutional bounds placed upon them is ever present, and to maintain those bounds, judges must maintain a self-imposed discipline and commitment to the constitutional structure they are sworn to uphold.

C.

The Framers were acutely aware of the danger of falling under the rule of a cabal of unelected judicial oligarchs. Because of this, in the constitutional structure they designed, they went to great lengths to establish judicial separation from the legislative and executive branches. Yet, the federal courts do have constitutional authority—indeed, what Chief Justice Marshall called a “duty”[45] —to interpret the legal text applicable in a given case and to apply that law to the facts. If this exercise of the judicial power is constitutionally permissible and required, how—in the high-stakes world of constitutional adjudication—should a judge faithfully fulfill his duty in a way that eschews the temptation to engage in judicial legislation and respects our separation of powers?

II.

In my view, originalism, properly understood, allows the judge to discharge his constitutional duties and responsibilities, while simultaneously limiting interpretative ventures that could lead to judicial legislation. Originalism keeps the judge in his proper constitutional sphere, incentivizes the legislative branches to take action, and thereby effectuates democratic rule.

First, a definitional point: As I use the term “originalism,” I refer to an interpretative method that “regards the discoverable meaning of the Constitution at the time of its initial adoption as authoritative for purposes of constitutional interpretation in the present.”[46] An originalist starts by looking at the textual provision at issue in a given case, and if that does not give a clear answer, turns to the historical understanding of the relevant language to clarify and to guide the interpretative inquiry.

Originalism, though present in the very first debates over constitutional meaning,[47] has a shorter history as a theoretically developed mode of constitutional interpretation. The modern form of originalist theory actually appeared in the 1980s as the American public, government officials, and academics felt the effects of the Warren Court’s decidedly nonoriginalist jurisprudence. But I need not recount the full history of the theoretical development of originalism here. Suffice it to say that, led by proponents like Attorney General Edwin Meese, Judge Robert Bork, Chief Justice William Rehnquist, and Justice Antonin Scalia, originalism quickly came to be regarded as a highly respected mode of constitutional interpretation.

Originalism mandates that the judge treat the Constitution like he would any other legal text—that is, that he interpret how it applies to the facts of the case before him, not speculate how the law should apply. In cases involving the broad provisions of the Constitution, relying on history “tends to rein in the subjective elements that are necessarily present.”[48] Originalism thus moves the judge away from a subjective normative inquiry regarding what the law should be toward a principled application of what the law is and has been since the time of its enactment. In doing so, it limits the opportunity for the judge to act as a legislator and public policy advocate, and reorients him toward “interpret[ing]  . . . the law[],” what Alexander Hamilton called “the proper and peculiar province of the courts.”[49]

As an added benefit, originalism helps resolve the “seeming anomaly of judicial supremacy in a democratic society.”[50] As Judge Bork once noted, “If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic.”[51] But when judges rely on the text, structure, and history of the Constitution, it transforms the Constitution from a sword by which the judge can impose his will to a shield by which he upholds the original agreement we the people entered into in 1789.

Thus, originalism is a jurisprudence that is grounded in judicial humility, but that bears its teeth in linguistic and historical determinacy. Originalism’s humility first comes from its admission that “the Constitution is not designed to produce the one ‘best answer’ to all questions, but rather to establish a framework for representative government and to set forth a few important substantive principles, commanding supramajority support, that legislatures are required to respect.”[52] It also fosters a certain personal humility among judges themselves, by limiting judicial discretion and preventing unelected federal judges from constitutionalizing their own personal views. By limiting such discretion and instructing that the judge only enforce those constitutional rights and principles that were agreed to at the framing, originalism ensures that all other questions will remain in the hands of legislative majorities. That is the idea of a constitutional democracy.

On the other hand, as I alluded to, originalism is not an exercise in futility. My earlier definition of the method referred to the “discoverable meaning of the Constitution at the time of its initial adoption,” acknowledging that such a discoverable meaning exists. Thus, a commitment to originalism does not entail abdication of the judicial duty and certainly does not leave the judge without a principled basis for decision making. In fact, originalism “require[s] the active exercise of the power of judicial review in order to keep faith with the principled commitments of the founding .  . . . [O]riginalism does not require judges to get out of the way of legislatures. It requires judges to uphold the original Constitution—nothing more, but also nothing less.”[53]

As Justice Powell once wrote, in the high-stakes world of constitutional adjudication, “the language of the applicable provision [often] provides great leeway and  . . . the underlying social policies are felt to be of vital importance.”[54] This means that “the temptation to read personal preference into the Constitution is understandably great.”[55] Thus, it is most critical that here, in the adjudication of constitutional cases, judges seek out the constraints of text and history to bind their own discretion and to serve as “guideposts for responsible decisionmaking.”[56]

III.

To illustrate how these principles of constitutional structure and originalist constitutional interpretation matter in real-world cases, I want to discuss with you a relatively recent case that came before my court and, eventually, the Supreme Court. The case, Washington v. Glucksberg, involved whether there was a constitutionally guaranteed right to physician-assisted suicide.[57]

First, a bit of history: the Anglo-American common law tradition has long punished or otherwise disapproved of suicide and assisted suicide.[58] By the time the Fourteenth Amendment was ratified, most states had made it a crime to assist suicide.[59] In more recent decades, however, due to advances in medical technology that have prolonged life, some states have begun to consider various measures designed “to protect dignity and independence at the end of life,” including legislative reforms that would permit certain forms of physician-assisted suicide.[60]

In 1991, the acceptability of physician-assisted suicide was squarely before citizens in the state of Washington. By a vote of fifty-four percent to forty-six percent,[61] “Washington voters rejected a ballot initiative which  . . . would have permitted a form of physician-assisted suicide.”[62] Specifically, Initiative 119 would have permitted “aid-in-dying,” which was defined as “a medical service provided in person by a physician that will end the life of a conscious and mentally competent qualified patient.”[63] By rejecting the initiative, Washington voters reaffirmed the long-standing prohibition on physician-assisted suicide.

Undaunted, advocates in favor of physician-assisted suicide then turned to the courts. The litigants—a coalition of doctors, three terminally ill patients, and a nonprofit organization that counsels people considering physician-assisted suicide—filed suit in federal court in Seattle. They claimed that Washington’s prohibition against “caus[ing]” or “aid[ing]” a suicide violated the United States Constitution.[64] Specifically, they asserted “the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.”[65] In pursuing litigation, the members of this coalition were asking the courts to set aside the views of a majority of Washington voters by, in effect, creating a previously unknown constitutional right.

The procedural history of the case is complicated. Suffice it to say that the district court agreed with the plaintiffs, concluding that Washington’s ban indeed violated the Constitution.[66] A panel of three judges on my court, the Ninth Circuit, reversed, emphasizing that there was no historical basis, which is to say no basis at all, for the constitutional right asserted.[67] That decision, however, was then called before an eleven-judge en banc panel of the Ninth Circuit, which reversed the original panel decision and affirmed the district court. According to eight judges on the en banc panel, the “Constitution encompasses a due process liberty interest in controlling the time and manner of one’s death—that there is, in short, a constitutionally recognized ‘right to die.’”[68] The full court then voted on whether the entire Ninth Circuit should hear the case, but that vote failed.[69] Like I said, complicated.

Along with two other colleagues, I dissented from our decision not to rehear the case as a full court. In my view, the en banc panel got it exactly wrong: There was no historically-based constitutional right to physician-assisted suicide. The Constitution’s structure demanded that the citizens of Washington, not “six men and two women[,] endowed with life tenure and cloaked in [judicial] robes,” decide whether physician-assisted suicide should be permitted in the state.[70] Not only was the en banc panel’s decision wrong as a matter of constitutional interpretation, but the application of its incorrect analysis resulted in the rejection of the considered policy choice of Washington voters.

As I argued in my dissental, the history, and thus the constitutional analysis, was clear. “[T]he weight of authority in the United States, from colonial days through at least the 1970s has demonstrated that the predominant attitude of society and the law has been one of opposition to suicide.”[71] Because the asserted right to physician-assisted suicide was not deeply rooted in our history and traditions, it was not a protected right under the United States Constitution. To conclude that it was such a right would have “reverse[d] centuries of legal doctrine and practice, and str[uck] down the considered policy choice of almost every State.”[72] That is simply not the role of a federal court!

Thus, it was “without adequate justification” that eight unelected judges engaged in a “shockingly broad act of judicial legislation,” nullifying the policy choice of Washington voters and, by constitutionalizing the question, removing the issue from the public square.[73] Perhaps the asserted justification was that physician-assisted suicide was a question of immense public import. But “[t]he Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary.”[74] By so boldly rejecting the considered views of Washington voters, the panel’s decision threatened the “public’s confidence in the legitimacy of judicial nullification of the will of the electorate.”[75] When judges engage in such “embarrassing judicial excess,” it undermines the foundational principles of our country and erodes the legitimacy of the judiciary as an institution.[76]

Of course, the en banc panel was not wrong simply because it “imposed [a policy] on the people contrary to their manifest intent.”[77] Had the voters of Washington infringed on a right that was deeply rooted in the original meaning of our Constitution, the en banc panel would have been correct to strike down Initiative 119. But that is why the historical inquiry is so critical. It is what ensures that the judiciary merely applies the law to resolve a case rather than acts as an alternative forum for policymaking. When a court is freed from the constraints of history, it too easily mutates into a substitute legislature.

In due course, the Supreme Court properly reversed the en banc panel and explicitly recognized the dangers inherent in disregarding historically grounded constitutional inquiry and the impermissibility of judicial legislation. Writing for the Court in Washington v. Glucksberg, Chief Justice Rehnquist explained that the en banc panel had cut short the “earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide”—and had done so in a way that ignored the historical inquiry that should have been central to the constitutional analysis.[78]

On the historical side, the Court began by analyzing the English common law roots of suicide bans, surveying the writings of Henry de Bracton and William Blackstone. The Court then turned to early American history, noting that the colonies and early state legislatures continued to prohibit aiding suicide. As the Court summarized, “for over 700 years, the Anglo-American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide.”[79]

With no textual basis or historical justification to set aside the law in question, the Court concluded that the citizens of Washington should have been left free to decide the policy of their state as they saw fit. They had demonstrated themselves willing and able to consider the contentious social issue, and now their choice was to stand.[80] James Madison and his contemporaries, I dare to say, would have agreed with that conclusion.

Madison’s design was ingenious, and his legacy enduring for all the right reasons. When he wrote about widening the scope of political participation, he said that it would only serve “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”[81]

Those words ring true in the physician-assisted suicide case. But they also remind us that the broader truth applies across different areas of constitutional inquiry. When courts act as legislatures, we lose the benefits of civic participation and surrender our right to self-rule. Our Framers designed a system that would prevent such destructive outcomes. We should do all we can to uphold that design.

IV. 

I want to conclude by offering a remark that should be obvious: In our tripartite system of government, the people rule. Through our politically elected representatives—at the state and national level—we the people make choices that become law. The Constitution does leave an important role for the judge—to interpret those laws—but that role is separate and distinct from displacing legitimate legislative choices. Since Marbury v. Madison, that role also includes the duty to strike down laws that conflict with the Constitution’s express words.

When constrained by the text, structure, and history of the Constitution, judicial review is palatable, and indeed necessary, to our constitutional system. But without those limits, we risk, as Thomas Jefferson once wrote, being placed “under the despotism of an oligarchy.”[82]

I urge all of us to be wary of the long-term effects of using the courts to override democratic choices that do not offend the original understanding of the Constitution. That model of governance has no place in our constitutional structure. As President Lincoln wrote shortly after the infamous Dred Scott decision, if “the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions” of unelected federal judges, “the people will have ceased to be their own rulers.”[83]

Our Constitution bestows on the people the authority to make laws through our politically accountable representatives. We should protect that prerogative by demanding that judges resist the temptation to become politicians in robes.

Thank you.

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[1] Judge O’Scannlain is a United States Circuit Judge on the United States Court of Appeals for the Ninth Circuit, and Chairman of the Committee on International Judicial Relations of the Judicial Conference of the United States. The views expressed herein are my own and do not necessarily reflect the views of my colleagues, the United States Court of Appeals for the Ninth Circuit, or the Judicial Conference of the United States.

[2] The problem of judicial legislation can arise in other contexts as well, such as when courts interpret statutes or assess the validity of regulations. In the interest of time, however, my focus here is on constitutional adjudication.

[3] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

[4] Julianna S. Gonen, Litigation as Lobbying: Reproductive Hazards and Interest Aggregation 4 (2003).

[5] Id. at 3; see also Anthony Champagne, Interest Groups and Judicial Elections, 34 Loy. L.A. L. Rev. 1391, 1393 (2001) (“Interest groups today often draw no distinction between achieving their goals through the courts or through the political process.”).

[6] William H. Rehnquist, The Notion of A Living Constitution, 54 Tex. L. Rev. 693, 695–98 (1976).

[7] Id. at 706.

[8] When I use the term “judicial legislation,” I do not do so literally. Rather, judicial legislation is the phenomenon of judges displacing democratic policy choices in the name of their own policy preferences couched in amorphous constitutional clauses interpreted without the aid of text, structure, and history.

[9] One can tell a similar story at the state level. See Robert P. Young, Jr., A Judicial Traditionalist Confronts Justice Brennan’s School of Judicial Philosophy, 33 Okla. City U. L. Rev. 263, 283 (2008).

[10] Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907, 1908 (2014).

[11] See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1339, 1341–42, 1345 (2001).

[12] The Federalist No. 48, at 332 (James Madison) (Carl Van Doren ed., 1945).

[13] See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 119–20 (2006) (using the term “democracy-forcing” to describe how certain judicial behavior may have incentive effects on the democratic branches of government).

[14] The Federalist No. 47, at 322 (James Madison) (Carl Van Doren ed., 1945).

[15] Buckley v. Valeo, 424 U.S. 1, 124 (1976).

[16] See U.S. Const. art. I, § 1; U.S. Const. art. II, § 1, cl. 1; U.S. Const. art. III, § 1 (vesting each branch with its exclusive constitutional authority).

[17] Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 857–58 (1990) (internal citations omitted).

[18] U.S. Const. art. I, § 1.

[19] U.S. Const. art. III, § 2, cl. 1.

[20] U.S. Const. art. III, § 1.

[21] John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1650 (2001).

[22] Clark, supra note 11, at 1332.

[23] Va. Declaration of Rights, art. II (1776), reprinted in The George Mason Lectures: Honoring the Two Hundredth Anniversary of the Virginia Declaration of Rights 20 (1976).

[24] Rehnquist, supra note 6, at 696.

[25] See 1 The Records of the Federal Convention of 1787, at 20–23 (Max Farrand ed., 1911) (the Virginia Plan, including the proposed resolutions of Edmund Randolph).

[26] The Records of the Federal Convention of 1787, at 328–29, 342–44 (Max Farrand ed., 1911) [hereinafter Records of the Federal Convention].

[27] Letter from John Jay et al., Supreme Court Justices, to President George Washington (Aug. 8, 1793) in 13 The Papers of George Washington, Presidential Series, 1 June‑31 August 1793, 392‑93 (Christine Sternberg Patrick ed., 2007). 

[28] Records of the Federal Convention, supra note 26, at 334.

[29] The Federalist No. 47, supra note 14, at 322 (James Madison), cited in Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).

[30] Baron de Montesquieu, The Spirit of Laws, bk. XI, ch. 6, at 163 (Thomas Nugent trans., London, George Bell & Sons 1878).

[31] The Federalist No. 78, at 521 (Alexander Hamilton) (Carl Van Doren ed., 1945).

[32] Id.

[33] The Federalist No. 47, supra note 14, at 324 (James Madison).

[34] In The Federalist No47, Madison remarked that “[o]ne of the principal objections . . . to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct.” Id. at 321 (emphasis added).

[35] John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 2004 (2011).

[36] The Federalist No. 47, supra note 14, at 323 (James Madison).

[37] Id.

[38] The Federalist No. 37, at 235–36 (James Madison) (Carl Van Doren ed., 1945).

[39] The Federalist No. 51, at 346 (James Madison) (Carl Van Doren ed., 1945).

[40] Id. at 347.

[41] 343 U.S. 579 (1952).

[42] Id. at 635 (Jackson, J., concurring).

[43] Id. at 594 (Frankfurter, J., concurring).

[44] See Springer v. Gov’t of Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting) (“The great ordinances of the Constitution do not establish and divide fields of black and white.”).

[45] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

[46] Keith Whittington, The New Originalism, 2 Geo. J. L. & Pub. Pol’y 599, 599 (2004).

[47] See Marbury 5 U.S. (1 Cranch) at 179–80 (1803) (inquiring into what “the framers of the constitution contemplated”).

[48] Washington v. Glucksberg, 521 U.S. 702, 722 (1997).

[49] The Federalist No. 78, supra note 31, at 522 (Alexander Hamilton).

[50] Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 2 (1971).

[51] Id.

[52] Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham L. Rev. 1269, 1273 (1997).

[53] Whittington, supra note 46, at 609.

[54] Furman v. Georgia, 408 U.S. 238, 431 (1972) (Powell, J., dissenting).

[55] Id.

[56] Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992).

[57] Washington v. Glucksberg, 521 U.S. 702 (1997).

[58] See id. at 712 (“Blackstone emphasized that ‘the law has  . . . ranked [suicide] among the highest crimes’”).

[59] Id. at 715.

[60] Id. at 716–17.

[61] Jane Gross,Voters Turn Down Mercy Killing Idea: Washington State Campaign Gives New Prominence to a Sensitive Issue, N.Y. Times, Nov. 7, 1991, at B16. 

[62] Glucksberg, 521 U.S. at 717.

[63] Id. at 717 n.13.

[64] Id. at 707–08.

[65] Id. at 708 (quoting Compassion in Dying v. Washington, 850 F. Supp. 1454, 1459 (W.D. Wash. 1994)).

[66] Compassion in Dying v. Washington, 850 F. Supp. 1454, 1467 (W.D. Wash. 1994).

[67] Compassion in Dying v. Washington, 49 F.3d 586, 588 (9th Cir. 1995).

[68] Compassion in Dying v. Washington, 79 F.3d 790, 816 (9th Cir. 1996).

[69] See Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996).

[70] Id. at 1440 (O’Scannlain, J., dissenting from denial of rehearing en banc).

[71] Id. at 1445 (quoting Thomas J. Marzen et al., Suicide: A Constitutional Right?, 24 Duq. L. Rev. 1, 100 (1985)).

[72] Glucksberg, 521 U.S. at 723.

[73] Compassion in Dying, 85 F.3d at 1441–42 (O’Scannlain, J., dissenting from denial of rehearing en banc).

[74] Idat 1442–43 (quoting Compassion in Dying v. Washington, 79 F.3d 790, 857, 858 (9th Cir. 1996) (Kleinfeld, J., dissenting)).

[75] Id. at 1441.

[76] Id. at 1442.

[77] Id. at 1443.

[78] Glucksberg, 521 U.S. at 722–23, 735.

[79] Id. at 711.

[80] Interestingly, in the years after the Glucksberg case, Washington voters reversed course and voted to permit physician-assisted suicide in certain circumstances. See Wash. Rev. Code § 70.245 (2008). Regardless of one’s views of the wisdom of such a choice, one can see how when the courts were taken out of play, the political branches were reinvigorated.

[81] The Federalist No. 10, at 60 (James Madison) (Carl Van Doren ed., 1945).

[82] Letter from Thomas Jefferson to William C. Jarvis (Sept. 28, 1820), in 12 The Works of Thomas Jefferson, 161, 162 (Paul Leicester Ford ed., 1905).

[83] Abraham Lincoln, First Inaugural Address (Mar. 4, 1861) in Abraham Lincoln: Selections from His Speeches and Writings, 255, 262 (J.G. de Roulhac Hamilton ed., 1922).

At the Frontier of the Younger Doctrine: Reflections on Google v. Hood

On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act.[1] Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods.[2] The case has garnered a great deal of media attention,[3] and with good reason. It raises important questions about Internet service providers’ responsibility for serving as a conduit to potentially dangerous or illegal goods, and it could have significant ramifications for the balance of power between the federal government and the states when it comes to regulating entities like Google.

Attorney General Hood is exactly right to argue that Google’s federal court action threatens to “interfere with . . . on-going state . . . proceedings” and “presum[es] that the state courts will not safeguard federal constitutional rights.” But he is wrong to think this poses any kind of problem from the perspective of the Younger doctrine. To the contrary, the cases seem to suggest that this is just what federal courts are for.”

With the first round of procedural wrangling now in full swing, the case reads like something out of a Federal Courts syllabus. Thus, the parties have joined issue on the question whether the Younger doctrine requires the district court to abstain from adjudicating Google’s claims; whether there is an implied right of action available to Google under federal law to enjoin enforcement of Mississippi’s consumer protection laws; and, relatedly, whether the court has jurisdiction over Google’s claims for declaratory relief.[4] There is even some discussion in the briefs of the obscure doctrine of complete preemption,[5] though the doctrine is almost certainly irrelevant to the case, and its appearance in the Attorney General’s briefing is rather contrived.

What is not contrived, however, is the Younger abstention issue, and it is on that aspect of the case that this Essay will focus. Google filed its federal court lawsuit approximately six weeks after Attorney General Hood served it with a subpoena demanding information pertaining to Google’s policies and practices relating to websites, YouTube videos, or advertisements that promote what the subpoena labels “Illegal Content” or “Dangerous Content.”[6] Younger, of course, prohibits federal courts from interfering with a variety of ongoing state judicial proceedings,[7] and Hood has argued that the issuance of an administrative subpoena, without more, gives rise to an “ongoing proceeding” sufficient to trigger the Younger bar.[8]

This issue—whether Younger requires a federal court to abstain from hearing a case if state law enforcement officials have already issued a subpoena running against the federal court plaintiff, but no criminal or civil action is pending—has divided the lower federal courts.[9] It also provides a useful vehicle for thinking about Younger more generally by calling attention to an important feature of the doctrine that is immanent in the Supreme Court’s post-Younger case law, but is not acknowledged explicitly. The cases signal, specifically, that federal courts must defer to state proceedings that are overseen by an impartial state actor—or, at least, one with a plausible claim to impartiality. Proceedings engineered and supervised exclusively by a prosecutor will not do. And since the issuance of a subpoena (at least the kind of subpoena at issue in this case) represents the unilateral act of prosecutorial authorities, it falls outside the ambit of the Younger doctrine.

I. Google v. Hood

A. Factual Background

In December of 2013, twenty-four state Attorneys General signed a letter to Google’s general counsel admonishing Google for using its products to “monetiz[e] dangerous and illegal conduct,” enable the sharing and trafficking of content in violation of intellectual property law, “promot[e] . . . illegal and prescription-free drugs,” and “facilitat[e] . . . payments to and by purveyors of all of the aforementioned content through Google’s payment services.”[10] The Attorneys General requested a meeting with Google to discuss these allegations and, more generally, “the abuse and presence of content [online] which represents a clear threat to public health and safety.”[11] Over the ensuing weeks and months, Attorney General Hood would emerge as Google’s most dogged critic, repeatedly making public statements accusing Google of illegal conduct and threatening civil and criminal charges against it.[12]

On October 21, 2014, Hood ratcheted up his investigation of Google by issuing a lengthy subpoena seeking documents and information pertaining to Google’s efforts to police third-party content that users might access through Google’s search engine and its YouTube website.[13] The parties negotiated a return date of January 5, 2015;[14] but before that date arrived, Google shifted to offense. It filed suit in the United States District Court for the Southern District of Mississippi seeking a declaration that Google cannot be held liable under Mississippi law for content created by third parties,[15] as well as an injunction against enforcement of the Attorney General’s subpoena.[16] Judge Wingate promptly stayed enforcement of the subpoena and scheduled a hearing for mid-February.[17]

B. The Procedural Battle

The Attorney General has since moved to dismiss Google’s lawsuit, pressing a barrage of claims premised in one way or another on the notion that, if Google wishes to fight the Attorney General’s subpoena, it must file a motion to quash in state court or wait for Hood to enlist the state courts’ help in enforcing the subpoena and challenge its validity then and there.[18] One variation on this argument is premised on the Supreme Court’s decision in Younger v. Harris.[19] That case disables federal courts from enjoining ongoing state court criminal proceedings,[20] and it has been extended by the Supreme Court to encompass civil enforcement actions,[21] administrative proceedings that are “judicial in nature,”[22] and certain proceedings to protect state court judgments or orders.[23] As Hood has yet to file an action against Google, however, there is no state proceeding pending against it at this time (at least not in the conventional sense), and so the case does not fit straightforwardly into any of the applications of the Younger doctrine that have previously been endorsed by the Supreme Court.

Hood insists that issuance of the subpoena against Google nevertheless suffices to animate the Younger bar.[24] The subpoena, he argues, is “part of an ongoing state law investigation” and is “judicial in nature.”[25] It is “an ‘integral part’ of a potential proceeding against [the Plaintiff],” and so the policies underlying Younger apply with full force.[26] Google rejects this view. It argues that the subpoena is simply a “pre-litigation investigative tool” and not the sort of civil proceeding deemed by the Court to fall within the ambit of Younger.[27]

II. At the Frontier of the Younger Doctrine

The question presented by Google v. Hood is easy enough to state: Does the issuance of an administrative subpoena by a state Attorney General prior to the filing of any enforcement action qualify as an “ongoing state proceeding” sufficient to trigger the Younger bar? The answer, however, is not so simple. There is some temptation to say that the question is straightforwardly empirical—that, at any given time, we can simply observe whether a state proceeding is up and running, and answer the Younger question from there. But of course this requires a working definition of the term “proceeding”—so that we know just what it is we are supposed to be observing—and the term is hardly self-defining. We might say, for example, that a “proceeding” requires the filing of some kind of formal complaint or charge, in which case the mere issuance of an investigative subpoena, without more, would not qualify.[28] But we might also reason, following Attorney General Hood,[29] that investigative work is a crucial part of any enforcement action, and that the issuance of a subpoena should therefore be taken as a sign that a “proceeding” is in fact underway. Both of these accounts are plausible, and so it seems unlikely that we’ll get meaningful traction on the question that concerns us here by way of generalized reflection on what does and does not count as a “proceeding.”

The Supreme Court’s post-Younger decisions, meanwhile, do not address the question—at least not directly. There is a long line of cases stretching from Younger itself to the recent decision in Sprint Communications v. Jacobs[30] expounding on the contours of the abstention doctrine, but the decisions tend to focus on the question of what type of proceedings merit Younger deference.[31] The question of when such a proceeding begins—of when we can say that it is “ongoing” for Younger purposes—has not garnered meaningful attention.

If we examine the cases closely, however, and focus on the policy considerations motivating some of the line-drawing we see, we can identify principles that speak to the question in Google v. Hood. Collectively, the cases suggest that only proceedings of a certain sort—those presided over by an impartial state actor—merit deference under the Younger doctrine. And if that’s right, then a proceeding is not “ongoing” for Younger purposes until such time as it has been turned over to an impartial state official or, at least, an impartial state actor is able to exercise meaningful oversight authority. The administrative subpoena at issue in the Google litigation was issued on the say-so of state prosecutors—without any intervention by a state judge or other neutral officer—and so abstention seems unwarranted.

A. Investigative Activity and Available State Court Proceedings

Before delving into Supreme Court decisions focused generally on the matter of Younger deference, it is worth examining lower federal court decisions addressed to the specific question that concerns us here: whether Younger kicks in upon the issuance of an administrative subpoena by state prosecutorial authorities. As noted above,[32] the federal courts are divided on the issue. Some reason that the issuance of a subpoena “suffice[s] to initiate an ongoing state proceeding,”[33] while others insist that investigation of this sort is “too preliminary . . . to constitute a ‘proceeding’ triggering Younger.”[34] Regardless of which side they take, however, the cases tend simply to assert that the issuance of a subpoena by prosecutors (or some other investigative move) either does or does not count as an ongoing proceeding. Sometimes they take the added step of reasoning by analogy to the array of Supreme Court decisions extending Younger outside the criminal realm. But what they do not do is explain why it might make sense (or not) to treat the issuance of a subpoena as sufficient to trigger Younger.

One opinion from the Southern District of New York, which concludes that Younger does apply in these circumstances (and on which Attorney General Hood relies extensively),[35] makes a partial attempt at explanation:

Although the contested subpoenas are not part of a criminal proceeding, they were issued by the Attorney General pursuant to an investigation of Plaintiffs’ allegedly illegal activities, and the information sought may be used to initiate civil or criminal proceedings against Plaintiffs. . . . They are an integral part of a potential proceeding against Plaintiffs, and without such subpoenas, the Attorney General seldom could amass the evidence necessary to commence fraud actions.[36]

The difficulty with this analysis is that nearly all investigative activity by attorneys general could be characterized as “an integral part of a potential proceeding;” and it is routinely the case that information sought by state officials in the course of an investigation could be used to initiate a civil or criminal action. Yet it is clear that if a state prosecutor launches an investigation into possibly unlawful conduct, but restricts that investigation to things like conversations with the target, interviews with third parties, and informal requests for documents and information, Younger will not come into play.

This is evident from the Supreme Court’s decision in the foundational case of Steffel v. Thompson.[37] That case holds that Younger poses no obstacle to a federal court plaintiff securing a declaration as to the constitutionality of state law so long as there is no prosecution pending against the plaintiff in state court.[38] In Steffel itself, the plaintiff was permitted to proceed with his federal court action for declaratory relief despite the fact that police officers had repeatedly investigated his allegedly unlawful conduct (distributing leaflets on a sidewalk outside a shopping center) and, indeed, threatened him with arrest.[39] In fact, plaintiffs filing Steffel-style actions for declaratory relief routinely call attention to investigative activity by state law enforcement officials in order to demonstrate that their cases satisfy the constraints of the ripeness doctrine.[40] And courts are hardly in the habit of dismissing these cases on the ground that such investigation is “an integral part of a potential proceeding” sufficient to trigger the Younger bar.[41]

Given Steffel, the argument for abstaining in a case like Google v. Hood seems weak. It is clear that routine investigative activity by state law enforcement officials will not cause the Younger bar to kick in, and it is difficult to see why application of the doctrine should be contingent on whether an investigation happens to entail use of the subpoena power. It is no answer to say that, with the issuance of a subpoena, the target of an investigation has access to a state court proceeding—initiated by a motion to quash—through which objections to the investigation might be ventilated.[42] For it is equally true, at least in most cases, that the target of an investigation that does not include use of the subpoena power has access to a state court proceeding—an action for declaratory or injunctive relief—through which she might raise objections to the investigation.[43]

Here too, Steffel is telling. The Court in that case did not stop to inquire whether the federal plaintiff might have pressed his constitutional claims in some state court action for declaratory or injunctive relief. It was enough to refuse abstention that the federal court plaintiff was not party to an ongoing state court action in which those claims might have been raised.[44] Nor, in the decades since Steffel was decided, have the lower federal courts endorsed the view that the availability of declaratory or injunctive relief in some yet-to-be-initiated state court action suffices to render abstention appropriate. The cases reflect the contrary view that it is one thing to say that a state court proceeding is available and another to say, as the Younger doctrine requires, that such a proceeding is ongoing.

B. Investigative Proceedings That Are “Judicial in Nature”

Despite all of this, federal courts are sometimes required to abstain in light of the pendency of state proceedings that include a significant investigative component. Thus, in Middlesex County Ethics Committee v. Garden State Bar Association, the Court held that a federal court challenge to the constitutionality of New Jersey’s attorney disciplinary rules was barred because the plaintiff was the subject of a pending disciplinary hearing before the state Ethics Committee.[45] And in Ohio Civil Rights Commission v. Dayton Christian Schools, the Court ordered abstention in light of the pendency of proceedings before the Ohio Civil Rights Commission.[46] In each of these cases, the administrative proceeding in question involved investigative work similar to the sort a prosecutor might perform prior to initiating a criminal or civil enforcement action;[47] yet the Court resolved to lump these processes—part investigative, part adjudicative—along with criminal and civil enforcement actions subject to the Younger bar, rather than depositing them in the Steffel category and exempting them from the abstention requirement.

Middlesex and Dayton have come to stand for the proposition that a federal court must abstain not only in deference to state criminal and civil enforcement proceedings, but also in light of the pendency of state administrative proceedings that are “judicial in nature.”[48] Yet neither case explains why, exactly, the administrative proceedings at issue were best regarded as “judicial,” rather than “administrative” or “investigative;”[49] and, more important for present purposes, neither explains why “judicial in nature” is the barometer of whether Younger applies to an administrative proceeding. This is unfortunate because it makes it difficult to see exactly what drives the doctrinal move embodied in the two cases, and that, in turn, makes it more difficult to understand the policies underlying Younger more generally. As it turns out, moreover, understanding just why it matters that the proceedings in those two cases were “judicial in nature” can help us get traction on the problem in Google v. Hood.

Younger famously explained federal courts’ duty to abstain from interfering with ongoing state criminal proceedings by reference to considerations of equity, comity, and federalism.[50] Over time, the first of these considerations (equity) has receded to the background of the Court’s Younger jurisprudence,[51] while the “more vital consideration[s]”[52] of comity and federalism have assumed center stage.[53] In fleshing out these principles of comity and federalism, the Court placed particular emphasis on the interests in avoiding duplicative litigation and in refraining from casting aspersions on state institutions’ willingness or capacity to deal fairly with litigants pressing federal constitutional claims. Thus, in Huffman v. Pursue, the majority emphasized that federal court interference with a pending state civil enforcement action “results in duplicative legal proceedings, and can readily be interpreted ‘as reflecting negatively upon the state court’s ability to enforce constitutional principles.’”[54] And, in Juidice v. Vail, the Court insisted that federal interference with state contempt proceedings “reflect[s] negatively upon the state court[s].”[55] Lower federal courts now routinely flag these considerations as the primary forces motivating the Younger doctrine.[56]

The key thing to observe at this point is that the Court has not extended this logic to ordinary investigative activities by state law enforcement officials. Again, we are back to Steffel. The Court in that case might have ordered abstention on the ground that when a litigant runs to federal court in the hope of bringing some state investigation to a halt, it “reflects negatively” on state institutions—to wit, the officials pursuing the investigation (why presume that they will ignore constitutional constraints and bring a prohibited enforcement action?) and the state judiciary as well (why not look to state courts to test the permissibility of state laws or official action?).[57] But it didn’t. Instead, the Court insisted that “considerations of equity, comity, and federalism have little vitality” when no prosecution is pending against the federal plaintiff.[58] “When no state criminal proceeding is pending,” the Court explained, “federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.”[59]

These arguments are unpersuasive. To begin with, the Court’s claim that the species of litigation authorized by its decision “does not result in . . . disruption of the state criminal justice system” is obviously false. Indeed, the whole point of the exercise (at least from the plaintiff’s perspective) is to disrupt the state’s criminal justice system. The disruption may or may not be warranted, but it is disruption either way.[60] The same goes for the claim that the lawsuits authorized by Steffel do not reflect negatively on state courts’ ability to enforce constitutional principles. Of course they do. Indeed, the very existence of federal court jurisdiction in cases of this sort is an expression of uncertainty as to state courts’ willingness to vindicate federal claims.[61] The point is not that Steffel got the balance wrong; it’s just that the Court’s justifications are overstated and oversimplified.

Despite the Justices’ reasoning, then, Steffel is best read not to support the conclusion that federal court challenges targeted at investigative activity by state prosecutors cast no aspersions on state officials or institutions, but that the casting of such aspersions is not always inconsistent with our federalism. Cases like Middlesex and Dayton Christian Schools, meanwhile, can help us to see why this is so. The Court’s emphasis in those cases on the question whether state administrative proceedings are “judicial in nature,” together with its refusal in Steffel to bar declaratory actions targeted at routine investigative activities by state law enforcement officials, suggests that application of the Younger doctrine is contingent on the formal participation of some impartial state actor in the enforcement and application of state law. Cases like Steffel just do not fit the bill; nor do administrative proceedings that lack what one federal court has labeled “trial-like trappings.”[62] Though it is true, of course, that state prosecutors are officers of the court—duty-bound to uphold applicable state and federal laws—few would classify them as impartial actors in the mold of state judges or even in the mold of the officials who perform adjudicative functions for administrative bodies like those at issue in Middlesex and Dayton Christian Schools. The fact is, we expect that prosecutors will sometimes press charges and file complaints (and certainly they will investigate) when the law says they should not; they operate in an institutional setting that conduces to that result. And so it is no great insult to state prosecutors to cast aspersions on the evenhandedness of their investigative efforts.

This intuition fully explains the manner in which the cases sort. Younger, Huffman, Middlesex, and Dayton Christian Schools all involve state proceedings pending before a state body with a legitimate claim to impartiality.[63] Steffel does not. The analysis here also suggests that it was essential to the holdings in Middlesex and Dayton Christian Schools that the plaintiffs did not file in federal court until after formal proceedings before the state administrative bodies had begun.[64] With the filing of formal charges in each of those cases, the work of the administrative body shifted from strictly investigative pursuits to a hybrid of investigation and impartial adjudication. And with that shift, one of the central policy justifications underlying Younger—avoiding casting aspersions on impartial state decisionmakers—sprung to life.[65]

Finally, this understanding of the Middlesex/Dayton rule finds support in decisions of the lower federal courts expounding on what it means for a state administrative proceeding to be “judicial in nature.” The Fourth Circuit’s decision in Telco Communications v. Carbaugh is illustrative.[66] The court there explained that for an administrative proceeding to be “judicial in nature,” it must have “trial-like trappings.”[67] And it focused on the questions whether the administrative body at issue initiated a formal hearing or requested a formal prosecution;[68] whether meetings held as part of the investigation involved sworn testimony and whether a record was maintained; whether the target of the investigation was permitted to issue subpoenas and cross examine witnesses; and, crucially, whether an impartial hearing officer presided over the proceeding.[69]

If all this is right, then Hood’s bid for abstention in the Google litigation ought to fail. The administrative subpoena under dispute in that case was issued at the direction of the Attorney General, without intervention or screening by a judicial officer or any other arguably neutral state actor. Attorney General Hood is exactly right to argue that Google’s federal court action threatens to “interfere with . . . on-going state . . . proceedings” and “presum[es] that the state courts will not safeguard federal constitutional rights.”[70] But he is wrong to think this poses any kind of problem from the perspective of the Younger doctrine. To the contrary, the cases seem to suggest that this is just what federal courts are for.

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[1] Complaint at 32, Google, Inc. v. Hood, No. 14-CV-981 (S.D. Miss. Dec. 19, 2014).
[2] Jimmie Gates, Hood: AGs May Battle Web Giant Google, Clarion Ledger, June 6, 2013, available at 2013 WLNR 14011192; Matea Gold & Tom Hamburger, Google Faces New Pressure From States to Crack Down on Illegal Online Drug Sales, Wash. Post, Apr. 15, 2014, http://www.washingtonpost.com/politics/google-faces-new-pressure-from-states-to-crack-‌down-‌on-illegal-‌online-drug-sales/‌2014/04/15/6dfc61fa-be6d-11e3-b195-dd0c1174052c_‌story.html.
[3] See, e.g., Dana Liebelson, Google Sues Mississippi Attorney General, Alleging Internet Censorship, Huffington Post, Dec. 19, 2014, http://www.huffingtonpost.com/2014/12/19/‌google-‌internet-censorship_n_6354518.html; Eric Lipton & Conor Dougherty, Sued by Google, a State Attorney General Retreats, N.Y. Times, Dec. 20, 2014, at B2; Rolfe Winkler, Google Sues Mississippi Over Campaign to Restrict Searches, Wall St. J., Dec. 19, 2014, http://www.wsj.com/articles/google-sues-mississippi-over-campaign-to-restrict-searches-‌1419031558.
[4] See infra note 18.
[5] Attorney General Jim Hood’s Memorandum in Support of Motion to Dismiss Complaint Based on Jurisdiction and Other Grounds at 20–21, Google, Inc. v. Hood, No. 14-CV-981 (S.D. Miss. Jan. 12, 2015) [hereinafter AG Motion to Dismiss].
[6] Administrative Subpoena and Subpoena Duces Tucem at 32–34, Google, Inc. v. Hood, No. 14-CV-981 (S.D. Miss. Oct. 21, 2014).
[7] Younger v. Harris, 401 U.S. 37, 53–54 (1971) (holding that federal courts must abstain from enjoining ongoing state criminal proceedings); infra notes 21–23 (citing cases extending the holding of Younger to non-criminal cases).
[8] AG Motion to Dismiss, supra note 5, at 31–33.
[9] Compare, e.g., Kaylor v. Fields, 661 F.2d 1177, 1181–82 (8th Cir. 1981) (holding that the issuance of a subpoena by the state Attorney General is sufficient to require abstention under the Younger doctrine), and Cuomo v. Dreamland Amusements, Inc., No. 08 Civ. 6321, 2008 WL 4369270, at *9 (S.D.N.Y. Sept. 22, 2008) (same), and J. & W. Seligman & Co. v. Spitzer, No. 05 Civ. 7781, 2007 WL 2822208, at *5 (S.D.N.Y. Sept. 27, 2007) (same), with, e.g., Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 518–19 (1st Cir. 2009) (declining to order abstention despite the issuance of subpoenas by the Office of Insurance Commissioners), and La. Debating and Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1491 (5th Cir. 1995) (similar), and Major League Baseball v. Butterworth, 181 F. Supp. 2d 1316, 1320, 1321 n.2 (N.D. Fla. 2001) (similar).
[10] Letter from State Attorneys General to Kent Walker, General Counsel, Google Inc. (Dec. 10, 2013), available at http://apps.washingtonpost.com/g/page/politics/‌correspondence-‌between-‌state-attorneys-general-and-google/945/.
[11] Id.
[12] Gold & Hamburger, supra note 2.
[13] See Administrative Subpoena and Subpoena Duces Tucem, supra note 6.
[14] AG Motion to Dismiss, supra note 5, at 7.
[15] Google’s principal argument is that the Attorney General’s investigation runs headlong into the Communications Decency Act of 1996, which preempts state and local laws that assign liability to Internet service providers for facilitating users’ access to online content produced by third parties. See Memorandum of Law in Support of Plaintiff Google Inc.’s Motion for Temporary Restraining Order and Preliminary Injunction at 15–21, Google, Inc. v. Hood, No. 14-CV-981 (S.D. Miss. Dec. 19, 2014) [hereinafter TRO Memo]; see also 47 U.S.C. § 230(c)(1), (e)(3) (providing that an Internet service provider may not be held liable as the “publisher or speaker” of third party content under state or local law). Google also contends that Hood’s investigation violates the First and Fourth Amendments to the United States Constitution and is preempted by the federal Food, Drug, and Cosmetic Act. TRO Memo, supra, at 22–26, 28–29, 31–33.
[16] See Complaint, supra note 1. Google’s strategic shift appears to have been motivated by its discovery that the Motion Picture Association of America was working behind the scenes to encourage and perhaps even orchestrate state investigations like those pursued by Hood. See Russell Brandom, Project Goliath: Inside Hollywood’s Secret War Against Google, Verge, Dec. 12, 2014, http://www.theverge.com/2014/12/12/7382287/project-goliath [hereinafter Project Goliath]; Dana Liebelson, Emails Show Hollywood Worked with a State Attorney General to Push Its Anti-Piracy Agenda, Huffington Post, Dec. 18, 2014, http://‌www.‌huffingtonpost.‌com/‌2014/12/18/movie-piracy_n_6348256.html; Nick Wingfield & Eric Lipton, Detractors of Google Take Fight to States, N.Y. Times, Dec. 17, 2014, at B1.
[17] Hayley Tsukayama, Judge Calls a Time-Out in Fight Between Google and Mississippi Attorney General, Wash. Post, Dec. 23, 2014, http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/23/judge-calls-a-time-out-in-fight-between-google-and-mississippi-attorney-general.
[18] AG Motion to Dismiss, supra note 5, at 3. The Attorney General argues, in particular, that the federal courts lack subject matter jurisdiction over Google’s claims, id. at 9–23, that Google failed to state a justiciable claim under the First Amendment, id. at 23–29, that Google’s claims are unripe, id. at 39–40, and (as discussed at length here) that Google’s claims are barred by the Younger doctrine, id. at 30–39.
[19] 401 U.S. 37 (1977).
[20] 401 U.S. at 53–54.
[21] See Trainor v. Hernandez, 431 U.S. 434, 443–44 (1977); Huffman v. Pursue, 420 U.S. 592, 604 (1975).
[22] See Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 625–29 (1986); Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433–34 (1982).
[23] Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12–14 (1987); Juidice v. Vail, 430 U.S. 327, 333–36 (1977).
[24] AG Motion to Dismiss, supra note 5, at 31–33.
[25] Id. at 31.
[26] Id. at 32 (quoting J. & W. Seligman & Co. v. Spitzer, No. 05 Civ. 7781, 2007 WL 2822208, at *5 (S.D.N.Y. Sept. 27, 2007)).
[27] Consolidated Memorandum Brief in Opposition to Defendant’s Motion to Dismiss and in Rebuttal to Defendant’s Response to Google’s Motion for a Temporary Restraining Order and Preliminary Injunction at 12–15, Google, Inc. v. Hood, No. 14-CV-981 (Jan. 22, 2015). Google also argued that Younger abstention is not warranted because its claim of preemption under the Communications Decency Act (CDA) is “facially conclusive” and because the case falls within the exception to the Younger doctrine for circumstances in which a state prosecutor has acted in bad faith. Id. at 15–18. I will not address these arguments here.
[28] Some lower federal courts lean toward this position. See, e.g., Telco Commc’n, Inc. v. Carbaugh, 885 F.2d 1225, 1228 (4th Cir. 1989); Monaghan v. Deakins, 798 F.2d 632, 637 (3d Cir. 1986).
[29] See supra notes 24–26 and accompanying text.
[30] 134 S. Ct. 584, 588 (2013).
[31] See id. (declining to extend Younger to cases involving pending civil actions between private parties); New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989) (refusing to extend Younger to cases involving pending state proceedings to review the legitimacy of state legislative or executive action); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12–14 (1987) (applying Younger to prevent federal interference with a state court judgment); Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 625–29 (1986) (administrative proceedings); Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432–34 (1982) (same); Juidice v. Vail, 430 U.S. 327, 333–36 (1977) (civil contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 443–44 (1977) (civil enforcement proceedings); Huffman v. Pursue, 420 U.S. 592, 603–05 (1975) (same); Steffel v. Thompson, 415 U.S. 452, 460–62 (1974) (abstention not required when there is no prosecution pending against the federal plaintiff).
[32] See supra note 9.
[33] Cuomo v. Dreamland Amusements, Inc., No. 08 Civ. 6321, 2008 WL 4369270, at *9 (S.D.N.Y. Sept. 22, 2008); see also Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) (finding that “[t]he issuance of [a] subpoena[] . . . is part of a state proceeding”); J. & W. Seligman & Co. v. Spitzer, No. 05 Civ. 7781, 2007 WL 2822208, at *6 (S.D.N.Y. Sept. 27, 2007) (finding that “Younger’s ‘ongoing proceeding’ requirement was clearly satisfied when a state agency . . . issued subpoenas, even though no formal charges had been filed” (internal quotations omitted)); Hip-Hop Summit Action Network v. N.Y. Temp. State Comm’n on Lobbying, No. 03 Civ. 5553, 2003 WL 22832569, at *3 (S.D.N.Y. Nov. 25, 2003) (same). There are also a handful of cases holding that the initiation of investigative work by a grand jury or the issuance of a search warrant suffice to trigger the Younger bar. See, e.g., Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 520–21 (5th Cir. 2004); Kingston v. Utah Cnty., No. 97-4000, 1998 WL 614462, at *4 (10th Cir. 1998); Craig v. Barney, 678 F. 2d 1200, 1201–02 (4th Cir. 1982); Mirka United, Inc. v. Cuomo, No. 06 Civ. 14292, 2007 WL 4225487, at *4 (S.D.N.Y. Nov. 27, 2007); Nick v. Abrams, 717 F. Supp. 1053, 1056 (S.D.N.Y. 1989).
[34] Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 519 (1st Cir. 2009); see also Major League Baseball v. Butterworth, 181 F. Supp. 2d 1316, 1320 (N.D. Fla. 2001) (finding that “no state criminal or civil proceeding [was] pending” despite the fact that the state Attorney General had issued civil investigative demands to plaintiffs prior to their filing in federal court). Some lower federal courts insist that some formal enforcement action beyond mere investigation—such as the filing of a formal complaint or charge—is necessary for Younger to apply. See, e.g., ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 140 (3d Cir. 2014); cases cited supra note 28.
[35] AG Motion to Dismiss, supra note 5, at 32–33.
[36] J. & W. Seligman & Co., 2007 WL 2822208, at *5 (internal quotations omitted).
[37] 415 U.S. 452 (1974).
[38] Id. at 462.
[39] Id. at 455. A companion of Steffel had in fact been arrested and charged with violating state law for the same leafleting activity Steffel wished to engage in. Id. at 455–56.
[40] See, e.g., Kiser v. Reitz, 765 F.3d 601, 605–06, 609–10 (6th Cir. 2014); Cooksey v. Futrell, 721 F.3d 226, 231–32, 239–41 (4th Cir. 2013).
[41] And how could they be? If investigations of this sort sufficed to animate the Younger bar, Steffel would be reduced to a virtual dead letter. In many cases, it will be difficult to show ripeness without showing some evidence of prosecutorial interest (which is to say, without providing evidence of some “investigation”), and it would be impossible, then, to avoid dismissal under Younger.
In Morales v. Trans World Airlines, Inc., the Court suggested that Younger applies not only to pending prosecutions, but to prosecutions that are “about-to-be-pending.” 504 U.S. 374, 381–82 n.1 (1992). And some lower federal courts have called attention to this language. See, e.g., Kingston v. Utah Cnty., No. 97-4000, 1998 WL 614462, at *4 (10th Cir. 1998); Mirka United, Inc,. v. Cuomo, No. 06 Civ. 14292, 2007 WL 4225487, at *3 (S.D.N.Y. Nov. 27, 2007). This is noteworthy because it suggests that one can have an “ongoing” proceeding prior to the formal initiation of an enforcement action, and that, in turn, suggests that investigation alone might suffice to trigger the Younger bar. But the key passage from Morales is footnote dictum, and it finds no support in prior or subsequent decisions of the Supreme Court. Certainly the Court has never ordered abstention under the Younger doctrine in a case that did not involve an action formally pending before some state court or administrative body. Second, even if the imminence of a state court prosecution sufficed to trigger Younger, the question would remain whether Younger applies to cases in which state prosecutors have issued subpoenas but still no prosecution is imminent.
[42] Hood leans heavily on this point in his Motion to Dismiss, AG Motion to Dismiss, supra note 5, at 5, 34–35, and lower federal court decisions ordering abstention in light of the issuance of administrative subpoenas focus intently on the availability of state court proceedings to challenge the investigation. See, e.g., Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) (“The issuance of the subpoenas, under Arkansas law, is part of a state proceeding in which the plaintiffs to this action had an opportunity to present their claims. Challenges to such subpoenas can be made by a motion to quash in the state circuit courts . . . .”); Hip-Hop Summit Action Network v. N.Y. Temp. State Comm’n on Lobbying, No. 03 Civ. 5553, 2003 WL 22832569, at *5 (S.D.N.Y. Nov. 25, 2003) (similar). The heavy emphasis on the availability of state court proceedings is a reaction to the Supreme Court’s decision in Middlesex County Ethics Committee v. Garden State Bar Ass’n, which treats the issue as an essential part of the inquiry into whether Younger abstention is required. 457 U.S. 423, 432 (1982). The Supreme Court’s recent decision in Sprint Communications v. Jacobs, however, admonishes lower courts not to treat the conditions identified in the Middlesex case as dispositive. 134 S. Ct. 584, 593 (2013).
[43] See, e.g., Miss. R. Civ. P. 57(a) (“Courts of record within their respective jurisdictions may declare rights, status, and other legal relations regardless of whether further relief is or could be claimed.”).
[44] Steffel, 415 U.S. at 462.
[45] 457 U.S. at 425, 437.
[46] 477 U.S. 619, 621–22, 629 (1986).
[47] See Dayton Christian Sch., Inc. v. Ohio Civil Rights Comm’n, 766 F.2d 932, 935 (6th Cir. 1985) (describing investigative work performed by the Civil Rights Commission), rev’d, 477 U.S. 619 (1986); Garden State Bar Ass’n v. Middlesex Cnty. Ethics Comm., 643 F.2d 119, 123 (3d Cir. 1981) (noting that the administrative body in question was “authorized to receive information relating to allegedly unethical conduct by a member of the bar” and to “inquire into the facts to decide whether a formal complaint should be filed”), rev’d, 457 U.S. 423 (1982).
[48] The phrase appears first in the Middlesex decision, wherein the Court took note of how the State of New Jersey classified the bar disciplinary proceedings at issue. 457 U.S. at 433. Dayton Christian Schools flags the point as doctrinally crucial. See 477 U.S. at 627 (“Because we found that the administrative proceedings in Middlesex were ‘judicial in nature’ from the outset, it was not essential . . . [for purposes of the Younger inquiry] that they had progressed to state-court review by the time we heard the federal injunction case.”(citation omitted)).
[49] In Middlesex, the Court emphasized that the New Jersey Supreme Court treats the relevant administrative body “as the arm of the court” and “considers its bar disciplinary proceedings as ‘judicial in nature.’” 457 U.S. at 433–34. This suggests that the Court was willing, at least to some extent, to outsource the question whether a proceeding is “judicial in nature” to the states. It seems entirely sensible to treat states’ views on this question as probative. But the question whether a proceeding is “judicial” within the meaning of the Younger doctrine must ultimately be one of federal law. And my point here is simply that Middlesex and Dayton provide little guidance on this score.
[50] Younger, 401 U.S. at 43–44.
[51] See, e.g., Middlesex, 457 U.S. at 431–32 (treating comity and federalism as “the policies underlying Younger”); Huffman v. Pursue, 420 U.S. 592, 604 (1975) (acknowledging that “the traditional reluctance of courts of equity . . . to interfere with a criminal prosecution . . . is not available to mandate federal restraint in civil cases”).
[52] Younger, 401 U.S. at 44.
[53] The steady marginalization of the equity-based justification for the Younger rule is linked to the expansion of the doctrine to cover noncriminal state proceedings. See cases cited supra note 31. The venerable maxim that equity will not enjoin a criminal prosecution could, of course, do no work in cases involving civil or administrative proceedings, and so it was necessary—if the results in the cases were to be persuasively defended—for the Court to lean heavily on the comity and federalism rationales.
[54] Huffman, 420 U.S. at 604 (quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)).
[55] Juidice v. Vail, 430 U.S. 327, 336 (1977) (quoting Huffman, 420 U.S. at 604); see also Middlesex, 457 U.S. at 431 (“Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.”).
[56] See, e.g., Moore v. City of Asheville, 396 F.3d 385, 394–95 (4th Cir. 2005); Coruzzi v. New Jersey, 705 F.2d 688, 691 (3d Cir. 1983).
[57] See, e.g., Moore v. Sims, 442 U.S. 415, 437 (1979) (Stevens, J., dissenting) (“[I]t can be argued that whenever a federal court rules on the constitutionality of a state statute, it is making a decision that interferes with the operation of important state mechanisms, and performing a task that could equally be performed by a state court.”). To be clear, Justice Stevens was not endorsing the view that abstention is appropriate under such conditions. To the contrary, he insisted that, under such circumstances, the affront to principles of comity and federalism is “lesser.” Id.
[58] Steffel, 415 U.S. at 462.
[59] Id.
[60] See Martin H. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 356 (2d ed. 1990) (“[Steffel] appears to contradict two of the . . . recognized bases of Younger deference—the desire to avoid interference with state substantive legislative policies and with state prosecutorial discretion. For whether or not a prosecution has been filed, federal relief tells the prosecutor ‘when and how’—and indeed if—he or she is to bring a prosecution.” (internal citation omitted)).
[61] See, e.g., Mitchum v. Foster, 407 U.S. 225, 242 (1972) (“Congress . . . was concerned that state instrumentalities could not protect [federal] rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights . . . and it believed that these failings extended to the state courts.”); see also, e.g., The Federalist No. 81, at 486 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (Hamilton justified the channeling of federal question cases to the federal courts on the ground that “the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes . . . State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws”).
[62] Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1228 (4th Cir. 1989) (explaining when the Middlesex/Dayton rule takes hold).
[63] The same holds for Juidice v. Vail and Pennzoil v. Texaco which, as noted earlier, see supra note 23 and accompanying text, extend the Younger doctrine to proceedings to enforce state court judgments or orders. In some cases, it will be difficult to determine whether hearing officers presiding over administrative proceedings meet criteria of evenhandedness sufficient to trigger Younger. These tribunals do not come labeled “neutral and evenhanded,” on the one hand, or “run by flunkies and hacks,” on the other. No doubt this is why some courts, like the Fourth Circuit in Telco Communications, inquire whether the proceedings in question have “trial-like trappings.” 885 F.2d at 1228.
[64] Dayton Christian Sch., 477 U.S. at 624; Middlesex, 457 U.S. at 428–29; see also supra notes 28, 34 (identifying cases taking the position that the initiation of formal administrative proceedings, as opposed to more informal investigative ones, is essential to the application of the Middlesex/Dayton rule).
[65] The analysis here might also help to explain—though it cannot justify—an interesting nuance in the lower court case law wrestling with the question of whether pre-filing investigative activity suffices to trigger the Younger bar. If we focus only on cases involving the issuance of subpoenas by grand juries, or efforts to secure information by way of a search warrant, the decisions lean heavily toward the view that later-filed federal court challenges are barred by Younger. See supra note 33. If we focus, instead, on cases involving subpoenas issued by state law enforcement officials, but neither search warrants nor grand juries, the cases are fairly evenly split. See supra notes 33–34. There is language in the cases from the former category suggesting that they swing the way they do because there is at least the patina of judicial oversight in the mix. See, e.g., Texas Ass’n of Bus. v. Earle, 388 F.3d 515, 521 (5th Cir. 2004) (“The grand jury is said to be ‘an arm of the court by which it is appointed.’ The district court impanels the grand jury after testing the qualifications of its members, administers the jurors’ oath, and instructs them as to their duties as grand jurors. The grand jury can seek advice from the district court on any matter it is considering.” (citations omitted)). No such argument is available in the context of an ordinary administrative subpoena. Whether this pattern in the lower court case law is defensible would seem to depend on the extent of judicial oversight over the subpoena- and search-warrant-issuing processes. Only if the relevant state judicial officer can truly pass judgment on, and perhaps prevent, the relevant species of investigation does it make sense to say that federal judicial intervention casts aspersions on an impartial state official.
[66] 885 F.2d 1225 (4th Cir. 1989).
[67] Id. at 1228.
[68] As noted earlier, see supra note 28 and accompanying text, some courts treat the initiation of formal proceedings as the crucial barometer of when the Younger bar kicks in. This metric, too, could be used to sort the major Supreme Court cases extending Younger outside the criminal realm. In many cases, of course, this inquiry and the one I focus on here will amount to much the same thing. That is, an impartial officer will become involved just as formal proceedings are initiated. I lean toward the “impartiality” formulation precisely because it seems to yield the sounder result in a case like Google v. Hood. The issuance of a subpoena would seem to qualify as a relatively formal investigative move. But it is difficult to see why Younger should attach to such proceedings simply by virtue of their formality. If it is permissible to “cast aspersions” on state prosecutorial authorities—and Steffel suggests that it is—why should it become impermissible to do so when the prosecutor has used the subpoena power?
[69] Telco, 885 F.2d at 1228; see also, e.g., Int’l Fidelity Ins. Co. v. Sanchez-Ramos, 397 F. Supp. 2d 327, 332 (D.P.R. 2005) (“The administrative proceedings that Younger is meant to protect must provide the parties involved with an opportunity to be heard and to present their version of the facts before a final determination is made; a neutral fact-finding process.”). To be clear, fixating on the neutrality of the process cannot help to explain all of the features of the Younger doctrine flagged earlier. Most notably, it cannot support an account of why the law eschews any requirement that federal claimants exhaust state judicial remedies nor, relatedly, can it help us to understand the Justices’ repeated insistence that even the pendency of state court proceedings will sometimes not be enough to motivate abstention under the Younger doctrine. See Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013) (“Abstention is not in order simply because a pending state-court proceeding involves the same subject matter.”); New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 373 (1989) (“[T]here is no doctrine that the availability or even the pendency of state judicial proceedings excludes the federal courts.”). Those features of the Younger doctrine are best explained by reference to the potency of the federal interest in providing a forum for the vindication of federal claims, see supra note 61, and the relative weakness of states’ interest in litigation falling outside the categories of criminal proceedings, civil enforcement proceedings, and civil proceedings to enforce state court judgments or orders.
[70] AG Motion to Dismiss, supra note 5, at 30, 35.

Bad Actors and the Evolution of Patent Law

Historically high levels of abusive patent enforcement fuel an ongoing debate on the need for legislative and judicial reforms designed to deter bad faith conduct by patent holders. To date, this debate has focused intently on the direct monetary costs and benefits of reform, most notably the impact on litigation costs and patent valuations. This Essay argues that this focus has led patent reformers and their opponents to overlook a significant indirect benefit of taking action against bad actors: namely, that strengthening courts’ ability to punish and prevent bad behavior will tend to make patent law more coherent and predictable in the long run. As the Essay explains, patent law’s lack of effective deterrents to bad faith conduct likely played a role to the creation of some of the most perennially confounding aspects of patent law. In the words of a familiar adage, patent law has seen its fair share of “bad facts” spawning “bad law.” In light of this history, there is good reason to believe that one benefit of raising the bar for acceptable conduct in patent litigation is that patent law will thereafter develop more logically for the simple reason that courts will be forced to grapple with bad facts (and thus tempted to make bad law) less often as a result.