Abstention, Separation of Powers, and Recasting the Meaning of Judicial Restraint

By Marshall, William P. | Northwestern University Law Review, April 1, 2013 | Go to article overview

Abstention, Separation of Powers, and Recasting the Meaning of Judicial Restraint


Marshall, William P., Northwestern University Law Review


ABSTRACT-In his 1984 landmark article, Abstention, Separation of Powers, and the Limits of the Judicial Function, Professor Martin H. Redish advanced the thesis that the abstention doctrines constituted a violation of separation of powers. Redish's theory was, and is, controversial. The suggestion that an embedded area of federal courts law is unconstitutional is, at the least, highly provocative. It is also ultimately unpersuasive. There are too many justifications underlying the legitimacy of abstention to support the conclusion that it violates the Constitution. Yet, as this Essay demonstrates, one does not have to be persuaded by Redish's constitutional conclusion to appreciate the landmark significance of his project. Prior to Abstention, Separation of Powers, and the Limits of the Judicial Function, the virtues of judicial restraint had been reflexively characterized as judicial deference to the decisions of political actors. Professor Redish, however, replaced this understanding with the more nuanced view that judicial restraint might also mean courts performing the tasks to which they were assigned. In so doing, Redish fundamentally recast the debate as to the proper understanding of the role and obligations of the federal judiciary and the meaning of judicial activism and judicial restraint.

INTRODUCTION

Abstention allows federal courts to avoid deciding disputes affecting the states and state law, or at least to delay hearing such disputes until the matters have been heard by the state courts. In so doing, abstention accomplishes a number of goals. It lessens the possibility that federal courts will needlessly decide constitutional issues. It minimizes federal court friction with state courts, state executives, and state legislatures. It protects against unnecessary federal court intrusion into sensitive matters of state policy. For these reasons, the abstention doctrines have been generally considered models of judicial restraint.

Professor Martin H. Redish, however, powerfully challenged this view of abstention. In Abstention, Separation of Powers, and the Limits of the Judicial Function,1 Redish contended that the abstention doctrines were not exercises of judicial restraint and humility; they were examples of judicial hubris. Abstention was not an instance of the federal judiciary's deferring to the other branches; it was an example of the federal courts rejecting the duly imposed obligations that the other branches had placed upon them.2 Abstention, Redish concluded, was a violation of the separation of powers.3

Redish's theory was, and is, controversial. The suggestion that an embedded area of federal courts law is not only ill-advised but actually illegal is, at the least, a dramatic departure from a settled understanding. Redish's theory, moreover, is ultimately not convincing. There are too many strong justifications underlying the legitimacy of abstention to support the conclusion that it violates the Constitution.

Yet, one does not have to be persuaded by Redish's constitutional conclusion to appreciate the landmark significance of his project. And that is the point that I intend to develop in this Essay. Abstention, Separation of Powers, and the Limits of the Judicial Function rightly holds status as one of the most important and transformative accounts of the law of federal courts that has yet been written. But as I will argue, Redish's article holds this status not because it is correct but because it changed the way that the meaning of judicial restraint was conceptualized.

Part I of this Essay briefly describes the abstention doctrines and the nature of Redish's attack upon them. Part II discusses the academic reaction to Redish's thesis, including the arguments as to why Redish's bottom line that the abstention doctrines violate separation of powers has not proved convincing. Part III demonstrates why, nevertheless, Redish's thesis was, and is, so fundamental to the proper understanding of the role and obligations of the federal judiciary and to the meaning of judicial activism. …

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