The Younger Doctrine: Reconstructing Reconstruction
80 Pages Posted: 10 Jan 2010
Date Written: August 1, 1977
Before the 1974 Term, it was still barely plausible to declare that "in first amendment cases Younger should be discarded. The sooner the better." Such a statement now would be tantamount to complaining about gravity or the second law of thermodynamics. By the end of the 1974 Term, the Court had gone so far in attempting to pump the principles of Younger into every cranny of the dual-court structure that, however unfortunate the policy or inept its implementation, the process was more likely to continue than to abate. The Court has gone still further since - too far to pull back without having to be candid and conscious, not only of what it has done, but of what it would then be doing. It has not been able to declare itself openly as it has advanced, and no issue relating to Younger has been joined to date with the requisite equipoise of votes that would require or even enable it to do so in retreat.
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