0:00:00.1 Speaker 1: First case on for argument today is number four, Younger against Harris.
0:00:10.5 Leone: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael, are joined by civil rights lawyer, Alec Karakatsanis, to talk about Younger v. Harris. Younger, the appellant in this case, was accused of violating a California state terrorism law, by distributing Leftist political pamphlets, a clear conflict with the First Amendment.
0:00:33.9 Speaker 3: It is an old statute for which I have heard no favorable comment, from any source, except from the Attorney General of California, so it is a kind of a statute which lends itself to unfair and harsh and cruel prosecution.
0:00:49.7 Leone: The court ruled against Younger's First Amendment challenge, saying that federalism, the separation of federal and state powers, prevented them from weighing in. This is 5-4, a podcast about how much the Supreme Court sucks.
0:01:05.2 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left American civil liberties brittle and weak, like the femur of a man with Osteoporosis. [chuckle] I am Peter. I am here with Michael.
0:01:17.2 Michael: Hey everybody.
0:01:18.4 Peter: And Rhiannon.
0:01:19.4 Rhiannon: Hey, dudes.
0:01:20.3 Peter: And our friend, Alec Karakatsanis. Alec, how are you?
0:01:23.5 Alec: I'm well, thanks for having me again.
0:01:25.0 Peter: Absolutely.
0:01:25.7 Rhiannon: Hey, Alec.
0:01:26.5 Peter: Alec, if you do not remember, is the Founder and Executive Director of Civil Rights Corps, as well as the author of "Usual Cruelty", and is a talented and prolific civil rights attorney, whose work often involves today's case. Today's case is Younger v. Harris. This is a case from 1971 that established a principle in civil rights litigation called the Younger Abstention. Allow me to explain Younger Abstention. Imagine you are being unconstitutionally prosecuted in state court, whether it's in violation of your First Amendment rights, or your Fourth Amendment rights, whatever.
0:02:04.3 Rhiannon: Okay, not hard.
0:02:05.9 Peter: What do you do? Generally, you would file a claim in federal court, claiming that this state is violating your federal constitutional rights. But because of this case, because of Younger Abstention, federal courts are forbidden from intervening in state court criminal proceedings. They are required to abstain, hence Younger Abstention. So if the police unlawfully arrest you, and proceed to prosecute you, you cannot challenge the arrest in federal court, until your prosecution is actually complete.
0:02:36.1 Rhiannon: Right.
0:02:36.4 Peter: Leaving you without any effective way to challenge your treatment.
0:02:40.1 Rhiannon: Womp womp.
0:02:41.3 Speaker 3: The principle is supposed to be about federalism, which is the separation of state and federal power. In other words, the court wanted to avoid situations where federal courts are intervening too often in state court proceedings. But the practical effect was to just make it very difficult for people to protect their constitutional rights.
0:03:00.9 Rhiannon: Yeah.
0:03:01.4 Peter: The case is about a man who claims his freedom of speech was violated. He claims he was targeted under a California anti-terrorism statute for handing out left-wing flyers. And instead of stepping in to vindicate his rights, the supreme court refuses to intervene, holding that it would violate the principles of federalism. And before I hand this off to Rhiannon, for some context, I wanna say everyone thinks that I have a weird accent when I say Younger... Because I don't hit the G.
0:03:31.8 Rhiannon: Younger.
0:03:32.6 Michael: Younger.
0:03:33.2 Peter: You really hit the G. I just say Younger.
0:03:35.1 Rhiannon: Younger.
0:03:35.7 Alec: Younger. [laughter]
0:03:37.6 Rhiannon: Yeah. I guess that's Philly, the Philly jumps out.
0:03:39.8 Peter: It might be something I was not self-conscious about, until our producer pointed out, [chuckle] and now I'll never stop thinking about it, [laughter] so thanks a lot, Rachel. Alright, Rhiannon, let's... We can dive into some context here.
0:03:51.8 Rhiannon: Yeah, let's talk about it. So this case starts because of an unconstitutional criminal statute in California. So, back in the late 60s, John Harris Jr is charged under the state's Criminal Syndicalism Act, which at the time prohibited advocating, teaching, or aiding the commission of a crime, or unlawful acts of violence, or terrorism, or quote, "affecting any political change." [laughter]
0:04:20.2 Alec: I'm sorry, that's just like a caricature of an unconstitutional law.
0:04:27.7 Rhiannon: Yeah, this law, it's similar to many other criminal laws passed in the 50s and 60s really, across the country, which were targeted at socialist and communist organizing and education in the US, right? It's directly aimed at squashing certain kinds of political speech, and it's written in this intentionally broad language, so that a wide array of political conduct can be labeled as criminal syndicalism under the statute. I'll read one of the sections of the law, where it's identifying some of the conduct that's illegal under the law. Any person who, quote, "willfully by personal act, or conduct, practices or commits any act advised, advocated, taught or aided and abetted by the doctrine or precept of criminal syndicalism, with intent to accomplish a change in industrial ownership or control, or affecting," again, "any political change." Right, so you get this really, really broad language aimed at really sweeping up anybody who is talking about changing the political system, right?
0:05:34.5 Peter: Or just asking for a promotion, if you read that broadly... [laughter]
0:05:39.1 Rhiannon: Yeah, that's right. John Harris Jr was a socialist. He was accused of, literally, handing out pamphlets, with information about socialist principles, socialist politics. He's indicted under this statute. He faces up to 14 years in prison, if found guilty, and so he sues in federal court. Note that he hadn't been found guilty yet, he was just charged with this crime, and while the state criminal court proceedings are ongoing, what he's asking the federal court to do is to enjoin the District Attorney, Evelle Younger, from prosecuting him.
0:06:14.9 Alec: That's right.
0:06:15.6 Rhiannon: And by asking the federal court to enjoin, what I mean is, he is asking the federal court to stop Evelle Younger from prosecuting.
0:06:24.6 Peter: Before we dig in too much, I wanted to say one more thing about the context of this case, which I think is really interesting. It's not in the opinion, and as you all often see, most Supreme Court opinions exclude precisely those facts about the surrounding context of the case that permit the court to engage in a lot of the propaganda that it engages in. And in this case, John Harris, the plaintiff, was an organizer for the Progressive Labor Party in Watts in Los Angeles County. And what he was accused of doing was handing out these leaflets as an organizer. And he was organizing in the black community, precisely in reaction to the murder of an unarmed black man by police in Watts. And the black man had been driving fast to try to get his wife who was in labor to a hospital, and the police pulled him over, ended up shooting and killing him.
0:07:15.6 Alec: Jesus.
0:07:16.2 Peter: And there was a lot of civil unrest. It's really the same kind of story we've seen over and over and over again in this country. And a lot of socialists, and communists, and left-wing labor organizers, and others were using that moment to raise awareness about the connection between police and wealth extraction from poor communities and capitalism. And that was actually the context within which the police in Los Angeles and the DA's office were trying to prosecute all of these organizers for drawing the connection between police brutality in black communities, and the economic and social systems that are sort of more broadly entrenched in the United States. And I think that's absolutely vital context, understand why it was that the Supreme Court intervened in this case and prevented the lower federal courts from blocking his prosecution, 'cause keep in mind, he won in the lower court. The lower court said this is an unconstitutional law, and you can't prosecute him.
0:08:10.1 Alec: Reactionaries don't ever really need an excuse. But there was this lingering question for me, which is, it really does seem like this guy is just handing out leaflets and organizing and stuff, and why are they arresting someone over that? But the police brutality and civil unrest context makes that just a lot more clear.
0:08:29.5 Rhiannon: Yeah, yeah. Super crucial background. And we should also talk about the historical context and the context of the kind of the federalism principles that Peter alluded to up top. Listeners should know that the Bill of Rights are the first 10 Amendments to the Constitution, of course, and they all purport to limit government power. The government can't suppress your speech, can't take your guns, can't seize your property, etcetera, etcetera. But for the first portion of our nation's history, the Bill of Rights didn't apply to laws that were passed by the states. They only applied to laws passed by the federal government. So the federal government couldn't suppress your freedom of speech, but state governments could. The Federal Constitution did not apply to them. The First Amendment didn't limit the power of state governments. It wasn't until after the Civil War when the 14th Amendment was passed that federal courts started to find that the Bill of Rights actually did apply to the states.
0:09:31.7 Peter: Right. The early days of our nation were marked by a pretty firm division between state and federal power, so there was a lingering question of how you enforce federal constitutional rights against states after the passage of the 14th Amendment. And the Supreme Court answered that question in a 1908 case called Ex Parte Young, where it held that individuals can sue state officials in federal court for violations of the Constitution. The exact contours of that right to sue state officials were not entirely clear until this case, Younger v. Harris, when the court severely limited it. And before we get into the substance of the opinion here, I wanna mention the tone. The majority decision uses soaring, grandiose rhetoric. It harkens back to the founding, it talks about the constitutional plan. There's just a tendency in the opinion to lean heavily into these sort of abstract and grandiose concepts, which is a good sign that the holding itself is not very firmly rooted in anything.
0:10:37.0 Rhiannon: Yeah, yeah.
0:10:37.2 Peter: And that's a pretty good rule of thumb, by the way, regardless of what side you're on in a case. If the court starts talking about the constitutional plan, [chuckle] they are making shit up as they go.
0:10:46.9 Rhiannon: Yeah. You know, in preparation for this episode, I was reading a Law Review article that was sort of making fun of the majority opinion by capitalizing both words in the phrase, "Our Federalism." Because that's what [laughter].. 'cause the majority keeps talking about, "Our Federalism," like this special sort of abstract concept. And also just one more fun fact, I guess. District Attorney Evelle Younger, the man who was in charge of prosecuting Harris...
0:11:15.6 Peter: Don't rub it in by hitting that G.
0:11:17.3 Alec: Younger.
0:11:17.4 Rhiannon: The man in charge of prosecuting Mr. Harris is a former FBI agent, a member of the organization that preceded the CIA, one of J. Edgar Hoover's top agents. And someone who is part of this reactionary movement, sort of entrenched in the conservative reaction to anybody fighting for civil rights at the time.
0:11:43.0 Michael: Civil rights era feds famously sympathetic to the left wing.
0:11:47.0 Rhiannon: Yeah. [laughter]
0:11:48.9 Peter: And keep in mind, this is about the exact same time that the nation's first SWAT team, militarized Special Weapons and Tactics team was created in Los Angeles, and the very first mission of the first SWAT team in the US was a brutal, violent, completely politically motivated raid on the party headquarters of the Black Panther Party in Los Angeles.
0:12:10.2 Rhiannon: That's where we're situated here.
0:12:12.1 Michael: Yeah.
0:12:12.5 Peter: Oh God, yeah. What a dark time. At its core, this opinion is very simple. According to the majority, there are long-standing principles about the separation of state and federal power, and accordingly, federal courts should not intervene in state court proceedings to enforce federal constitutional rights. Meaning that if a state government is violating your constitutional rights, you cannot file a lawsuit against them in federal court until your state case has completed.
0:12:39.9 Rhiannon: That's right.
0:12:40.5 Peter: So Harris, who is having his First Amendment rights violated by the state of California is out of luck. We should note that the court does say that there are some circumstances where federal courts can intervene in state court actions. If the state is knowingly and in bad faith prosecuting an innocent person or harassing someone, or if the law in question is "flagrantly and patently violative of the Constitution," whatever that means, federal courts can step in. And in fact, I wanna read you the full quote about the type of law that the Supreme Court says federal courts can step in to strike down. What they say is a statute that is, "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it."
0:13:29.6 Rhiannon: Woah.
0:13:31.2 Peter: That's a fictional law that doesn't exist.
0:13:35.0 Peter: And essentially means that there is no circumstance where a federal court can intervene because the law is sort of on its face unconstitutional. And certainly, this law is on its face, unconstitutional, right?
0:13:46.8 Rhiannon: That's right. Yes.
0:13:48.0 Peter: If there was ever a more obvious case, a law that allows the government to step in depending on essentially the political leanings of someone who is speaking, just a flat out open and shut violation of the First Amendment.
0:14:02.3 Rhiannon: Yeah, and Harris isn't just making a novel sort of claim that this law is unconstitutional. Two years before in 1969, the Supreme Court had just handed down a decision in a case called Brandenburg that was striking down a substantially similar statute in another state, in Ohio I believe. And in that case, the Supreme Court said, "This law is unconstitutional. Is there any other law that could be more sort of flagrantly and patently violative of the Constitution than a law that in another state has already been found to be unconstitutional?
0:14:35.6 Michael: Right. Right. [laughter] So the bottom line is, outside of some extreme circumstances that are sort of purposefully designed to not ever happen, if your constitutional rights are being violated in a state court proceeding, the federal government cannot help you. First impressions, [chuckle] the court says that for the purpose of respecting federalism, it won't interfere in state exercises of power, but the allegation is that the state's exercise of power is illegal. In my opinion, it would be a great time for the federal government to intervene. It seems like really almost the only time they should intervene.
0:15:16.2 Peter: This case is a really good example of all of the various doctrines and rules that the federal courts have concocted out of thin air to prevent themselves from doing justice. And when you combine this doctrine, abstention, which says federal courts will not intervene, even if your federal constitutional rights are being violated, with other doctrines like immunity doctrines, mootness, standing, all these things, particularly absolute immunity given to prosecutors, and the qualified immunity given the police officers, and the sovereign immunity given to states, what you get is a situation where you can't challenge your ongoing violation of your rights, so you didn't stop it.
0:15:54.2 Peter: And then after you experience that violation, because of all the immunities that the Supreme Court created, you can't sue them for damages for it. There's absolutely no way to intervene, to vindicate your federal constitutional rights for a large majority of these civil rights violations, and that is the basis of a class they teach you in law school called Federal Courts. And the entire basis of the class is, how did federal courts stop hearing civil rights claims without having to reject those claims on their merits. Because what the courts know is that they would lose their legitimacy if they had to resolve these cases and show people the gap between the way the law is written, and the way that police, prosecutors, and judges apply it, and that's fascinating and very diabolical to prevent these cases from ever even being heard.
0:16:37.7 Michael: Yeah.
0:16:37.7 Rhiannon: That's right.
0:16:38.2 Michael: Something I've struck by reading this case, it's a little tangential, but is that there were other plaintiffs here.
0:16:44.2 Rhiannon: Yes.
0:16:44.2 Michael: Who had sort of intervened and said like, "Hey, you know, we're organizers, I'm a leftist professor, and this feels like it's inhibiting my speech. I don't wanna keep doing what I'm doing and get arrested, if all of a sudden talking about the communist party gets you 14 years in jail. Maybe I'm just not gonna do that." And we want the courts to say, "This law's unconstitutional," and the Supreme Court said they don't have standing and they're like, "You're not being prosecuted and you can't show that you will be prosecuted." And the tone is almost sarcastic, I thought.
0:17:20.7 Rhiannon: Yeah, incredibly dismissive. Yeah.
0:17:22.5 Michael: They put in scare quotes that all they say is that they feel inhibited. But there's a concept in free speech, like chilled speech.
0:17:31.7 Rhiannon: Yeah.
0:17:31.7 Michael: When law's chill speech, that is a reason to hold them unconstitutional, that's a well-settled issue.
0:17:37.4 Peter: Chilling means feeling inhibited.
0:17:39.5 Michael: And that is the definition, it's like, if the definition of chilled speech is someone saying, "I'm not going to do this politically, constitutionally-protected activity because I think I will have retribution... "
0:17:50.3 Rhiannon: Right.
0:17:50.3 Michael: And the court's laughing at it, just mocking... And that's the point. That's the point of the statute, and that's the point of this prosecution is precisely to get this professor to stop teaching Marx and these organizers to stop talking in poor communities about the systems that oppress them.
0:18:07.0 Peter: Yeah.
0:18:07.6 Michael: Gas lighting, that word is overused, but in this case, very much appropriate way to describe what they were doing with their standing arguments.
0:18:16.7 Peter: And I thought the words the court used, so when it's talking about these other people who, keep in mind, some of them are organizers from the same Progressive Labor Party who wanna do the same thing, they wanna go into these communities and do political education, hand out flyers, hand out pamphlets, and the court calls their fear of prosecution, "imaginary and speculative". And never can you find a better example of elite judges being completely out of touch with the daily realities of... If you are an organizer in that time trying to organize in the black community in Watts toward political revolution, your body is on the line. They have to know...
0:18:54.8 Rhiannon: Absolutely, yeah.
0:18:56.2 Peter: That these are the people that cops, FBI, prosecutors are targeting their bodies, their minds, their lives, their families. And to call that imaginary and speculative and dismiss their case altogether for standing purposes is pretty abhorrent.
0:19:08.9 Rhiannon: Yeah.
0:19:09.4 Michael: Yeah.
0:19:09.7 Peter: Yeah. And just to take a really quick step back, you're looking at the 30,000 feet. An FBI, for example, when this case is handed down, engaged in one of the most flagrant and aggressive violations of free speech in this country's history in its infiltration, intentional dismantling of Black liberation organizations and other left-leaning organizations. Never discussed for what it was, which was an aggressive violation of the First Amendment.
0:19:38.9 Rhiannon: Absolutely, yeah.
0:19:39.0 Peter: But seeing as we are talking about a First Amendment case that sort of fits into that context with a prosecuting attorney who was an FBI agent, it feels like it's worth mentioning.
0:19:49.6 Rhiannon: Yes.
0:19:50.7 Michael: Yes.
0:19:51.0 Peter: So after this decision comes down, you can sort of quickly see the doctrine being taken to absurd places. In 1975, in a case called Hicks v. Miranda, the court held that federal claims must be dismissed even if the state criminal charges are brought after the federal case is filed. So if the police violate your rights with an illegal search, for example, you sue them in federal court, and then right after you sue, the cops file charges against you, your federal case against the cops will be thrown out, effectively giving police departments a sort of veto power over federal court claims against them.
0:20:28.4 Rhiannon: That's right.
0:20:29.0 S?: That's right. And another particularly perverse way that Younger Abstention appears now, commonly I think, is with Habeas Corpus petitions related to speedy trial rights. So you might be aware that the Bill of Rights explicitly gives you the right to a speedy trial, so the government can't detain you indefinitely while you're pending trial and essentially just get their prison sentence just running out the clock. And there is this constitutional principle that says if you're being detained unlawfully, you can petition the federal courts for Writ of Habeas Corpus saying, "Hey, my detention's unconstitutional and they need to let me go." So being detained for years without trial would seemingly be the prototypical example of what Habeas Corpus court should be doing. But instead, they regularly cite Younger Abstention and say, "That state court proceeding you're saying is taking unconstitutionally long. Come back to us once it's completed."
0:21:40.0 S?: "And then we can weigh in on that." It's obscene, it's obscene, the incidents where I've seen them actually hear the case, it's been literally three-plus years without trial, or just extremely dilatory stuff from the state. The Younger Abstention in general is bad, but there's something about that that just really I think is so bad.
0:22:04.9 Rhiannon: Right.
0:22:05.0 Peter: And the court says in the Opinion that, maybe the federal courts could intervene if you're about to suffer irreparable injury. But then it says that going through an unconstitutional criminal prosecution is not irreparable. [chuckle]
0:22:16.3 Rhiannon: Right, right, exactly.
0:22:18.3 Peter: It includes words like the sort of, the cost and anxiety and inconvenience of having to defend yourself is not irreparable. In spite of using the words like inconvenience to describe horrific pre-trial human caging in an environment where you're likely to be physically and sexually abused and separated from your children, the idea that that's not irreparable is astounding.
0:22:39.4 Michael: Yeah.
0:22:39.7 S?: But what's even more fascinating is, all of this is predicated on some fictional idea that state courts are following the law and we should give state courts a chance to follow the law, there's no reason to assume that they won't follow the law, except that anyone who has spent one day, one week, one month, years in state courts across this country know that it is assembly line crisis of the complete denial of Constitutional Rights for poor people.
0:23:09.9 Rhiannon: Yeah.
0:23:10.0 S?: Go to any criminal court in this country and you will see not a single one of the Bill of Rights is being followed in the typical case. It is an assembly line bureaucracy of human caging and everybody knows that, the justices in the Supreme Court understand it, all the way down through the prosecutors and the local judges and the local defense attorneys. Everyone understands that the entire system would actually collapse if they had to give everyone a good lawyer with an investigator and a jury trial, and none of that happens, and the presumption that these courts are following the law when everybody knows that they're rampantly violating people's rights is really one of the ugliest things that we see in our work.
0:23:43.6 Michael: Yeah.
0:23:43.6 S?: Right. And if you're keeping track at home, taking a step back a couple episodes, irreparable harm, not when you're unconstitutionally prosecuted, but irreparable harm is actually when landlords don't get paid rent. Bad times. [laughter]
0:23:58.6 Peter: That is the... Right. That is the official precedent of the United States Supreme Court.
0:24:03.1 Michael: Yeah.
0:24:03.3 Rhiannon: That's right.
0:24:03.8 S?: Well, it's exactly this fuzziness. These concepts are so fuzzy, so they use words like, "Oh, of course, well, if the harm is irreparable, then we would step in." And what's irreparable to a land-owning, wealthy Supreme Court Justice is the idea that you wouldn't be able to collect your rent from your peasants on time.
0:24:21.1 Rhiannon: Yeah.
0:24:21.1 S?: What's not irreparable is the idea that someone would be separated from their child in a local jail cell in downtown Los Angeles. And it's precisely the fact that the Supreme Court knows that the ruling class elites who control the police bureaucracy, prosecutor's offices, local judges and the federal courts, will apply these fuzzy doctrines in a way that helps you out if you're ever a rich person that gets caught up in something like this, but that in the mine run of cases that are just processing poor people, we'll hang them out to dry...
0:24:51.3 S?: Yeah, yeah, there's... I mean on the speedy trial stuff, when I was looking into it, there was one in the Ninth Circuit where someone managed to get in the state proceedings, like a pre-trial motion about their constitutional claim about a speedy trial. The court rejected it, it got appealed and rejected, and finally, because they had exhausted all those options, a federal court heard it and was like, "You're right, your constitutional rights [chuckle] are absolutely being violated. You're absolutely in violation of your speedy trial rights." But yet, what about that year and a half or whatever how long it took while the courts abstained and waited for these just sub par avenues of vindicating your rights to work through the process of saying, "Fuck you" to this defendant, to this person?
0:25:38.2 Michael: Exactly.
0:25:38.4 Michael: That's irreparable. That's a year of your life gone.
0:25:42.5 Peter: Right.
0:25:42.6 Michael: Right? That...
0:25:43.1 S?: And if you try to sue them for money, they would tell you the judge is immune, the prosecutor is immune, and the state is immune.
0:25:47.1 Michael: Yeah, that's right. That's right.
0:25:49.4 Peter: So the central feature of this case is really about the fundamental flaws of the United States government, and I don't... [chuckle] I don't wanna dig too deep, but the bug in this case is that the court is prioritizing the abstraction of federalism over the actual rights of individuals. It's discarding the constitutional claim of a wronged person out of deference to vague principles about the separation of state and federal governments. And so when I call federalism, the divide between federal and state power, when I call that an abstraction, what I mean is that state's rights are not supposed to be an end in and of themselves. The purported goal of emphasizing state's rights is to endorse a government that is closer to the population being governed. The end goal is theoretically about protecting the rights of citizens, not state governments per se. Which makes it even more jarring and egregious for the court to cast aside the violation of an actual citizen's rights because they are prioritizing some abstract principle about the division of state and federal power.
0:26:52.3 Rhiannon: Yeah, so this decision has to be seen in its proper legal historical context too, which is an immediate reaction by the conservative legal movement and the conservative Supreme Court to stop the civil rights gains of the '60s. Many of these gains, an increasingly expansive view of legal civil rights come out of what are called 1983 cases. So Section 1983 in the US Code provides an individual the right to sue state government employees and others who are acting under the color of state law for civil rights violations. But since this decision, since the Younger decision, the court has continued to expand this kind of abstention and carved out more and more situations where they say that federal courts cannot intervene in state court proceedings even when federal constitutional rights are being violated.
0:27:45.6 Rhiannon: So this case, Younger, it was a criminal case, a state criminal law, and at first, Younger Abstention only applied in those limited criminal contexts, but a subsequent Supreme Court decision in the late '70s, early '80s held that Younger Abstention does apply in certain pending civil proceedings in state court where "state interests" are particularly weighty, and then the court went even further and has even applied Younger Abstention to certain pending state administrative proceedings. So the result is that plaintiffs suing over civil rights have extremely limited opportunities to ask federal courts for prospective relief.
0:28:27.0 Michael: Right.
0:28:27.3 S?: Just to be concrete about that, the federal courts, and in the years after Younger, started trying to apply the same doctrine to the state government taking away indigenous children from their parents in child custody proceedings to cases where people's rights are being violated by state enforcement of certain pollution regulations or licensing statutes or... There's a whole wide range of state actions that control everyday life. And the court basically said, "We're not gonna interfere if the state... " And again, it's so fuzzy that it allows the conservative judges to step in whenever they want to, whenever there's a conservative substantive issue that they actually care about blocking the Federal Court from doing, right? And so it gives a lot of power to federal courts while ensuring that the rights of the most marginalized people in this country are completely ignored.
0:29:17.5 S?: There's something so bleak about the fact that Congress in 1871, I think it is, passes Section 1983, which allows people to sue states for constitutional violations. And then you have the Supreme Court 100 years later, literally 100 years later, stepping in to put their thumb on the side of less progress on civil rights by saying, "Well, it shouldn't be quite so easy to do that." Just defying the will of one of the most important Congresses in the country's history, the post-Civil War Congress.
0:29:53.5 Rhiannon: Yeah, right.
0:29:53.5 S?: And I think that throughline is not accidental. We talked in the beginning about how the Civil War Amendment sort of restructured American government and the relationship between the federal government and the state governments and the people. And since then, pretty much immediately after that point, there has been a concerted effort to roll back that progress, to push back everything that was done in reconstruction in the south, and everything that was done to make the country a more fair place for freed slaves and their descendants. And so, yeah, it's not a surprise that time after time, we're talking about these cases and it's like, "Oh, turns out that this comes right back to the passage of the 14th Amendment, or Civil Rights Act of 1871, is it?
0:30:47.2 Peter: I think so.
0:30:48.0 Alec: Yeah.
0:30:48.4 Rhiannon: Right.
0:30:48.7 S?: But yeah, we're constantly hitting this theme because it is a decades-long, century-plus-long political project. They never gave up. They're still flying the fucking Confederate flag. It's not... There's no mystery as to what's going on with the right-wing in this country, there's just a refusal by a lot of people to see it for what it is.
0:31:12.6 Michael: Right. One important big picture point here is that this case says you cannot bring constitutional claims in federal court while your state charges are pending. You can still bring your constitutional claims in state court. You might think of that solves the problem, just sue in state court instead of federal. There are a few reasons why that's not adequate, or more than a few, but I will go over a few. First, it's a fact that constitutional claims fare better in federal court, the state court. That is what the data shows. But on top of that, there's a weird irony here where the court is trying to respect the separation of powers, and somehow we end up with a situation where people are trying to vindicate their federal rights in state court.
0:31:55.7 Rhiannon: Right.
0:31:55.9 Michael: That's the opposite of separation of powers.
0:31:57.7 Leone: Yeah, yeah.
0:31:58.3 Michael: That is the mixing of [chuckle] state and federal power and the state government being determinative of your federal rights. That doesn't seem like it jives with the rest of the decision. [chuckle]
0:32:09.9 Rhiannon: Right, it's just a complete abdication of federal court jurisdiction. This is the federal court system, this is the Supreme Court saying, "No, federal courts are actually less powerful in this way." Actually, state courts kind of have this first bite at the apple, or we have to respect what state courts are doing. When we are talking about federal rights, the federal constitution and what it means, that is exactly the role of federal courts to be explaining to people and to be ruling on.
0:32:36.8 S?: I hinted at this earlier, but I think it bears sort of a little bit deeper analysis, which is that this decision is part of a much broader project of the conservative legal movement to stop talking about the merits of people's constitutional rights in court. Because we have a legal system that absolutely, every single day, millions of times, just violates people's very basic rights. Take, for example, like the war on terror, everybody understands people were kidnapped, extraordinarily rendered, tortured all over the world, not a single person who the US government admits doing these things to, admits to that. Not a single person has ever gotten damages from the US government in a federal court. And the reason is that not a single one of them has ever had their case heard on the merits, because federal courts concocted so many doctrines precisely to avoid the situation where they have to talk about in a public forum, what the US government was doing.
0:33:33.7 S?: And the same is true in local criminal cases, sort of legal elites who control our bureaucracy, they know very well, but there's this extraordinary gap between the lofty values, it says, "Equal justice under law", on the top of the Supreme Court, it doesn't say "We won't prevent constitutional violations" on the top of the Supreme Court, right? And so they have these lofty values like the Equal Protection Clause and the First Amendment and Free speech, and all of these values are completely contradicted by the police and mass incarceration bureaucracy in this country, and they know that if they allow cases to proceed to the merits, then people are gonna be talking about in public, these horrible things that are happening to people. How their violations of their rights are every day sort of reality in the legal system. And so the easiest way to do that... And they know they couldn't rule against us on the merits, because they're not gonna say things like, it's perfectly fine for the police to arrest and detain people illegally, they're not gonna ever wanna say that. So what they do instead is say, "We're not even gonna listen to this case. We're not even gonna decide this question, and we're not even gonna give you a public forum to talk about it." And in that way, the elites who control the federal courts are able to sweep under the rug so much of the everyday violence of the system.
0:34:43.7 S?: Yeah, that's right.
0:34:44.3 S?: Yeah. And it creates a moral distance that they then rely on and... Scalia built a career off of scoffing at people who tried to center substantive rights, making the claim that they were almost unprofessional, right? "What you're doing is a morality play. What I'm doing is talking about the law." But the law was something that they purposefully constructed, the sort of separate apparatus that exists, almost completely separate from the actual substantive claims, like is this violating the Constitution? And they get to constantly point towards it, to act as if anyone who does concern themselves with the material rights of citizens of this country is somehow doing the wrong thing, they are doing the law incorrectly.
0:35:30.3 S?: Yeah.
0:35:31.8 S?: If I could add one hopeful note, I mean...
0:35:34.6 S?: Please.
0:35:35.4 S?: Yes.
0:35:35.8 S?: The reason I tell a lot of law students, if you wanna be helpful to this movement, and to any movement, the environmental movement, the movement for black lives, the labor movement, you can do a lot of damage to these systems by mastering these doctrines better than they do.
0:35:49.7 S?: Yes.
0:35:51.2 S?: And I think we, for example, throughout our cases over the last eight years, whether we're shutting down debtors' prisons across the country for caging poor people who can't afford to pay their fees and fines, or whether it's our litigation, challenging the US money bail system in which 400,000 people are detained every single day in this country just because they can't make a cash payment, these are all cases where our adversaries in court tried to use Younger Abstention to kick our cases out of court.
0:36:15.8 Rhiannon: Yes.
0:36:16.6 S?: And in all these cases, we're winning. Now, who knows what will keep happening in the federal courts, the more success we have, the more pressure there is from federal judges to sort of invent reasons to have us lose. But the reason for that is, we mastered these doctrines and we understood all of the little exceptions the court has created over the years. For example, Younger does not apply, this abstention doctrine does not apply if there's not what's called an adequate ability in state court to raise your federal constitutional claim. So what that meant was we focused a lot of our pre-litigation investigation on developing the facts that this John Harris in this Younger case didn't develop. Right?
0:36:53.0 Leone: Right.
0:36:54.9 S?: He didn't develop a factual record that the state courts were actually not capable of providing him an adequate opportunity. And so what we do in all of our cases is we show with meticulous detail how you actually can't bring the federal constitutional challenge that you want in state court prior to suffering the violation of your federal rights. And we've been so far successful in that. And I think if you master that framework, you can actually force the system to do what it doesn't wanna do, in at least some cases.
0:37:21.1 Rhiannon: Beautiful.
0:37:22.1 S?: That's right. And this discussion, it sort of reminds me that all of this is very consonant with this ethos among conservative legal types, this idea that people who are trying to vindicate their rights in court are actually abusing process, that taking appeals and filing for these writs of habeas corpus and doing all these things where you're saying, "My rights have been violated," that that is actually abusive process.
0:37:54.1 S?: Right. They're getting off on technicalities.
0:37:54.8 S?: Right, yeah.
0:37:57.4 S?: Yeah, right. It's something that we're all familiar with, this idea that people try to hang on technicalities like "Oh, my speedy trial rights," or whatever. [chuckle]
0:38:08.9 S?: Remember Dexter? There's an entire television show where there's someone who murders criminals who get off on technicalities.
0:38:13.7 S?: Right.
0:38:14.2 S?: That's right.
0:38:15.0 S?: It went for like eight seasons.
0:38:16.6 S?: Yes. [laughter] But... So yeah, I think for conservatives, the creation of more hurdles, more technical hurdles, that's the appropriate response. "Well, let's make it harder. Let's make it take longer. Let's make it less available," right? This fits very comfortably in that sort of approach, that very heartless approach to the law.
0:38:38.4 Peter: I do think we've been talking a lot about conservatives, and there's no question that doctrines like this are part of a broad conservative legal movement, but I wanna be really clear, these doctrines are applied willingly, sometimes even gleefully, every single day by moderate and liberal judges across the country.
0:38:56.4 Rhiannon: Oh for sure, yes.
0:38:57.1 Alec: Absolutely.
0:38:58.1 Peter: And the normalization of the concept that federal court shouldn't vindicate the constitutional rights of the most marginalized people in our society has been sort of spread throughout the entire federal court judiciary. And it's not limited to appointees from Republican presidents. It is a conservative anti-social change ethos that has seeped into the very fiber of the way that federal courts think about the role that they play in our society.
0:39:29.5 Rhiannon: Yeah.
0:39:29.7 Alec: Yeah that's absolutely right.
0:39:30.4 Peter: And I think it's not an accident that the origin of this case is actually a bunch of liberal Democrat local government actors, from the mayor to the chief of police, to the DA in Los Angeles trying to prevent left-wing organizers.
0:39:47.6 Rhiannon: Yes.
0:39:47.7 Alec: That's right.
0:39:48.3 Alec: These conservative legal doctrines are repeatedly, throughout the country, weaponized and used by democratic political machine operatives who control most police forces and most DA's offices in urban areas across this country. These doctrines are then weaponized and used every single day by them as well.
0:40:06.5 S?: Right. And politicians who are already in positions of power, and they're not looking for a big social change from either parties.
0:40:12.3 S?: They're inherently reactionary.
0:40:14.4 Alec: Yeah.
0:40:14.9 S?: I think it's part the fact that many moderate Liberals are, [chuckle] in many ways, just conservatives, in part just the complete absorption of conservative propaganda by the liberal legal academic body, which has, to this day, not mustered an appropriate response to the sort of conservative legal movement that emanated from the civil rights era. And it's hard to overstate how important, both substantively and symbolically, this case is in the broader conservative legal project. The civil rights era was characterized by a struggle between federal government and explicitly racist state and local government institutions, and the federal government's primary weapon in that struggle was the power of federal courts. So it's no coincidence that you see conservatives as soon as they regained control of the court in the early 1970s, immediately kneecapped the ability of federal courts to vindicate citizen's federal rights. And it's important to understand that the war on civil rights isn't just about substantive rights, like Alec was saying, it's about placing significant impediments in front of anyone who wants to bring a claim.
0:41:21.6 Rhiannon: That's right.
0:41:22.8 Peter: That allows lawyers and judges to throw a veil of impartiality over their decisions acting as if cases like this are matters of mechanics and not about fundamental and constitutional rights and morality and human suffering.
0:41:38.3 Rhiannon: Right.
0:41:38.8 Alec: Yeah, that's right.
0:41:38.9 S?: My only final thought on this is that if this law is still on the books, we should use it to stop Joe Biden from spreading Marxism.
0:41:47.1 S?: That's the only good that can come from this case is just making a citizen's arrest of Joe Biden [0:41:51.7] ____ California.
0:41:57.5 Peter: That's all for this week. Alec, as always, thanks for coming on. I, for one, found this discussion quite intellectually rigorous, and I don't think anyone could disagree.
0:42:08.3 S?: Thanks for having me again.
0:42:09.7 Peter: Next week Hamdi v. Rumsfeld case about the indefinite detention of terrorists and the war on terror, which is over, still going? We'll tell you next week.
0:42:25.7 Peter: Follow us on Twitter @fivefourpod and subscribe to our Patreon for premium episodes, special events, access to our Slack, all sorts of shit, patreon.com/fivefourpod, all spelled out. We'll see you next week.
0:42:41.2 Speaker 1: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks @chipsny, and our theme song is by Spatial Relations.