The Myth of Superiority
Rubenstein, William B., Constitutional Commentary
Get a group of civil rights lawyers together and there is at least one thing they would agree upon--they prefer to litigate in federal, not state, court.(1) Writing in 1977 from his decade-long experience as a civil liberties litigator, Burt Neuborne codified this sacred tenet in the pages of the Harvard Law Review.(2) In The Myth of Parity, Neuborne opined that federal courts were systematically preferable to state courts as a forum for the protection of federal constitutional rights. Neuborne's claim exceeded the simple proposition that federal judges were more politically liberal during this time period. Rather, he set forth an argument that federal courts were "institutionally preferable to state appellate courts as forums in which to raise federal constitutional claims."(3)
The experience of gay rights litigators in the twenty-two years since Neuborne's thesis was published challenge his assumptions in several interesting ways.(4) Put simply, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. That statement poses two challenges to Neuborne's thesis. First, it implies that the federal courts were never institutionally better situated to protect disfavored claimants and that all Neuborne really experienced in his time as a litigator was a greater representation of liberal judges in the federal courts. This point has intuitive appeal because during much of the succeeding two decades, the federal courts have largely been dominated by conservative Republican appointees.(5) Perhaps Neuborne's preference for federal courts and pro-gay litigators' preference for state courts simply reflect short term trends in the political orientation of these fora. Yet the gay rights experience might suggest something more meaningful: perhaps it reveals institutional advantages of state courts in protecting individual rights that are missing from Neuborne's depiction of these competing fora.(6)
I. THREE PARITY DEBATES
Since the founding of the Republic, controversy has surrounded the proper role of the federal courts and their relationship to state courts in a federal judicial system.(7) A central concern has been how cases involving federal rights, particularly federal constitutional rights, are allocated between these two judicial systems. Is a federal forum a necessary adjunct for the enforcement of a federal right? Or can state courts be trusted to protect federal rights? The constitution's Madisonian Compromise enables federal issues to be litigated in state courts, while simultaneously authorizing Congress to establish inferior federal courts as a forum for the litigation of federal questions and ensuring that the Supreme Court can have the last word on all determinations of federal law.
The constitutional structure that permits both state and federal courts to rule on federal issues sets the stage for the parity debate. At the center lies a comparison between the institutional competence of state and federal courts: those who believe federal courts institutionally superior argue, on this basis, for an expansion of federal jurisdiction,(8) while others resist on the grounds that state courts are institutionally comparable to federal fora.(9) The parity debate arises in a variety of doctrinal contexts,(10) and has been especially palpable for the past half-century.(11)
Dubbing the argument in favor of state court competence "the myth of parity," Burt Neuborne stepped into the debate in 1977 with a ringing and influential(12) endorsement of the superiority of federal fora. Neuborne's federal-forum-preference thesis emanated from his practice experience.(13) But the preference also responded to growing Supreme Court jurisprudence limiting federal habeas corpus review of state criminal convictions. In fashioning that jurisprudence during the 1970s, the post-Warren Court justices relied upon the proposition that state courts are as institutionally capable of protecting federal constitutional rights as are their federal counterparts. …