Finally, because of the developments discussed in previous chapters, many litigants will not have a real option of bypassing the state forum and selecting a federal court. These individuals are forced into a state forum and once there will not have an opportunity to bring their federal constitutional claim to a federal court. Unless the Court relaxes the preclusion rules they will suffer the same fate as Lorraine Gargiul. The doors to the federal district court will be closed tight.
Like Ms. Gargiul, they will be able to appeal through the state court system and then seek review in the U.S. Supreme Court.122 That Court, however, hears only a very small fraction of the cases in which review is sought.123 Moreover, the Supreme Court is bound by the factfinding made by the trial court; it does not independently make factual determinations. These litigants thus will have been deprived of any factfinding by a lower federal court. The importance of the trial judge's role in making findings of facts cannot be ignored. Indeed, Justice William O. Douglas commented:
Judges are not fungible; they cover the constitutional spectrum; and a particular judge's emphasis may make a world of a difference when it comes to ruling on evidence, the temper of the court room, the tolerance for a proffered defense, and the like. Lawyers recognize this when they talk about "shopping" for a judge.124
In cases where they apply, the preclusion rules together with the other door-closing developments return us to the scheme for protecting federal constitutional rights that existed under the Judiciary Act of 1789. The aggrieved individual begins the lawsuit against the state or local officials in state court and enters the federal judicial system only by review in the Supreme Court, if it is granted. The preclusion rules keep the doors of the lower federal courts tightly closed.