The Forgotten Face of “Our Federalism”

abstract. Younger v. Harris is canonical in the field of federal courts and exerts significant influence on federal civil-rights litigation. The decision’s exposition of “Our Federalism” produced the Younger abstention doctrine, limiting federal courts’ authority to address constitutional violations in state criminal prosecutions. Today, lower courts have expanded this doctrine in ways that substantially impede litigation challenging systemic illegalities in, for instance, pretrial detention systems and child-welfare programs. However, the origins of the case—a stark narrative of racialized surveillance, censorship, and police violence—remain largely unknown.

This Article recovers this story and reconstructs the case of John Harris, Jr., the forgotten face of “Our Federalism.” Harris was a Black civil-rights activist and onetime member of the Student Nonviolent Coordinating Committee who organized, protested, and agitated for racial and economic justice across Washington, D.C., Los Angeles, and the Deep South. His 1965 arrests in Mississippi were clearly legible as Jim Crow oppression, but his subsequent Los Angeles indictment in 1966 for similar activism became harder to recognize as racial persecution because it fell outside the Southern “Jim Crow paradigm.” This differential recognition helped courts maintain their image as champions against Southern injustice while limiting federal intervention elsewhere. Moreover, FBI files reveal extensive federal-state cooperation in suppressing Black political activism, contradicting Younger’s conception of federalism as “separate spheres.”

Examining a diverse array of sources—including original interviews, newly acquired FBI files, press coverage, court transcripts, legislative records, memoirs, protest materials, and four Supreme Court Justices’ archival papers—this Article contributes to the democratization of constitutional memory by recovering the erased history of Black political resistance and state oppression underlying Younger v. Harris. It also introduces “legitimacy laundering,” a novel framework illustrating how subsequent narratives surrounding canonically influential decisions obscure their original context and implications and thereby confer legitimacy on otherwise questionable legal practices. Moreover, this Article reveals how some modern courts have expanded Younger abstention beyond its carefully negotiated scope, undermining the doctrine’s original purpose in preserving federal courts’ power to prevent irreparable harm.

authors. Fred O. Smith, Jr. is a Professor of Law at Stanford Law School. Peter O’Neill is a former federal judicial law clerk. For comments, helpful discussions, and permissions, thanks are due to Bruce Ackerman, Payvand Ahdout, Monica Bell, Maggie Blackhawk, Andrew Bradt, Sam Bray, Farrel Broslawsky, Clayborne Carson, Josh Chafetz, Zachary Clopton, Andrew Crespo, Arley Dann, Rachel Dann, Mary Dudziak, Dave Fagundes, Richard Fallon, Hon. William Fletcher, David Fontana, Kellen Funk, Owen Fiss, Maggie Gardner, Abbe Gluck, Darren Hutchinson, Bert Huang, Tonja Jacobi, Andrew Jennings, Alec Karakatsanis, Riley Keenan, Harold Koh, Allison Larsen, Marin Levy, Kay Levine, Eli Nachmany, Douglas NeJaime, Luke Norris, Jim Pfander, Jack Preis, Robert Post, Richard Re, Matt Sag, Sarath Sanga, Tom Schmidt, Jonathan Seymour, Reva Siegel, Shirin Sinnar, David Sklansky, Marissa Jackson Sow, Norm Spaulding, Allison Tait, John Witt, Diego Zambrano, and Alex Zhang. Various components of this Article benefited from meaningful engagement from participants of the Advanced Federal Courts Workshop at Columbia Law School; the Judicial Process Roundtable at Duke Law School; the Public Law Colloquium at Northwestern Law; the University of Richmond Faculty Workshop; the Public Law Colloquium at NYU Law; the Legal Studies Workshop at Stanford Law School; the Faculty Colloquium at the University of Denver Sturm College of Law; and the Faculty Workshop at Yale Law School.

Introduction

In 1965, Leonard Deadwyler, Jr. and John Harris, Jr. independently left the American South and headed west, a trek that many other Black Americans made during the Great Migration.3 These two separate journeys would soon tragically intersect. By mid-1966, Deadwyler was dead, shot at point-blank range by a white police officer in Los Angeles while he was driving his pregnant wife to the hospital.4 “She’s having a baby,” the unarmed, twenty-five-year-old father pled with what would be his last words.5 As for Harris, he was indicted on two counts of criminal syndicalism—each carrying a potential twenty-seven-year prison sentence—for distributing literature at a protest of Deadwyler’s death conveying themes of police abolition, anticapitalism, and the disparate racial impact of an ongoing war.

Harris’s criminal prosecution gave rise to a highly consequential, landmark federal-courts case that continues to shape federal civil-rights litigation today: Younger v. Harris.6 This case, argued three times before the Supreme Court as coalitions shattered in the wake of the Court’s shifting composition,7 ultimately resulted in the doctrine known as Younger abstention. Under that doctrine, federal courts are not to halt an ongoing state criminal prosecution unless (1) the underlying state criminal forum is an inadequate site to raise federal constitutional claims, (2) “great” irreparable harm would follow in the absence of equitable intervention, or (3) other exceptional circumstances, such as a prosecution rooted in bad faith, are present.8 Relying on this doctrine, the Supreme Court reversed a lower federal court’s injunction that had been issued in Harris’s favor. Five decades later, the Supreme Court’s invocation of “Our Federalism” in Younger has spawned an ever-expanding abstention doctrine that some federal courts now wield to dismiss constitutional challenges across wide-ranging areas of state governance—from criminal justice to family law to public health—fundamentally altering the promise of federal civil-rights litigation.

This anticlimactic conclusion to Harris’s civil-rights battle in federal court was consistent with his own predictions in the years before. The flyers that led to his indictment pointedly compared Black Americans seeking justice in the American judiciary to George Washington seeking redress in King George’s colonial courts.9 Harris “warned against putting any faith in the federal courts,” flatly telling a leftist newsletter at the time that “no justice should be expected from the courts.”10 The conclusion of Harris’s legal battle was, in the words of another plaintiff in the suit, a “disappointment” and an “irony.”11 A case seeking to expand civil liberties had actually created a basis for using “jurisdiction as a means of undercutting the very foundations of . . . protections for civil liberties and civil rights.”12

In the legal literature about Younger abstention, there is virtually no mention, let alone comprehensive discussion, of the racialized context of Harris’s arrest. The case has undergone a kind of laundering, in which the field of federal courts has come to divorce the case from its factual context altogether—omitting police brutality and race from our collective recollection. An article by one distinguished professor and former Massachusetts Supreme Judicial Court justice once wrongly described Younger (rather than Harris) as the party having been arrested.13 While other descriptions do not suffer from this inaccuracy, they are similarly incomplete. Some academic references to Younger simply note that Harris was arrested for criminal syndicalism,14 exercising his free-speech rights,15 or handing out literature.16 When additional information is given, academics have sometimes emphasized the workers’ rights dimension to the protest but notably omitted any reference to race.17 A prominent legal historian, for example, recently described the case as “involv[ing] the criminal prosecution of several California professors for teaching ‘the doctrines of Karl Marx.’”18 While a college instructor was among the plaintiffs in that case, the lead plaintiff, John Harris, was not a professor. Harris was a grassroots advocate who, in his own words, was “fighting police brutality” and “fighting for Black Liberation”19—first in D.C. and the Deep South, and then in Los Angeles in the aftermath of the 1965 Watts racial uprisings.

For Harris and some other members of the Progressive Labor Party, labor rights were inextricably tied to racial justice. In a leaflet he was arrested for distributing, Harris criticized a “system that kills people for being Black and poor.”20 The leaflet continued, charging that “[m]urder by cops and death by unemployment are methods of systemic extermination.”21 The literature called for abolishing the police and argued that “[t]he cops and the system they served must be replaced.”22

This ideological linkage between racial justice and economic transformation was not lost on government officials, who viewed such connections through the lens of Cold War anxieties. Federal, state, and local officials alike feared that, given their relative economic and social standing, Black Americans would be attracted to far-left economic ideologies.23 These officials warned that highly publicized instances of police brutality opened the door for Black-Communist coalitions.24 Accordingly, the FBI dedicated significant attention to surveilling and disrupting movements that promoted Black liberation.25 The FBI often worked in tandem with local “red squads”—police units that had proliferated during the first Red Scare and the Cold War.26 In Los Angeles specifically, the local apparatus had significant support from Police Chief William Parker (who militarized the department and infamously spewed racist rhetoric);27 Mayor Sam Yorty (a former federal intelligence official with statewide political ambitions);28 and District Attorney Evelle Younger (also a former federal intelligence official who later ran for California Attorney General, successfully, and for governor, unsuccessfully).29

During the summer and fall of 1966, the year Harris was arrested, ambitious government officials capitalized on the public’s fear of advocates for racial justice and communism.30 That summer, Mayor Yorty sought the Democratic nomination for governor as a conservative, advocating for a version of an antiriot bill that would have criminalized speech promoting lawbreaking as a means of political change.31 On the campaign trail, he condemned the pamphlets handed out at the protest of Deadwyler’s death.32 He vocally opposed the philosophy of civil disobedience, warning that it would facilitate communism.33 And he harshly, regularly, criticized incumbent governor Edmund “Pat” Brown for permitting protests on a public college campus to persist without a strong punitive response from the state.34 When Yorty lost the nomination to Governor Brown, Ronald Reagan, then the Republican nominee for governor, picked up the mantle, running an ad condemning Brown’s record on riots the very week that Harris was arrested.35 (In November, Reagan was elected governor on the strength of the white vote.36) In this charged atmosphere, where politicians won elections by promising to silence voices like Harris’s, his prosecution became emblematic of a larger struggle: whether advocating for systemic change could be criminalized as incitement to lawlessness.

This Article centers John Harris, Jr.’s struggle for racial justice and free speech in the understanding of Younger v. Harris. To do so, the Article draws on contemporaneous newspaper articles, interviews, letters, protest literature, congressional-hearing transcripts, a plaintiff’s memoir, archival records from civil-rights organizations, and the papers of four Supreme Court Justices. These documents reveal Harris’s leadership in a movement for racial and economic justice in the Jim Crow South and further evince the racially charged environment that Harris encountered upon moving to Los Angeles, marked by high-profile instances of police brutality and the aftermath of a race riot. These sources also reveal the way that Harris’s felony indictment—the first for criminal syndicalism in several decades—fell within law-enforcement officials’ broader efforts to surveil, control, and eradicate movements for Black racial and economic justice in the 1960s.37

This Article’s primary contribution is one of remembrance—that is, recovering forgotten history. This work of remembrance, what Elie Wiesel called “a noble and necessary act,”38 does more than preserve historical knowledge—it actively challenges our constitutional memory. As Reva Siegel has explained, history and constitutional memory regularly diverge.39 Constitutional memory “often excludes history, sometimes intentionally,”40 constructing narratives from selective facts or even falsehoods. Remembrance provides the raw materials from which constitutional memory can be (re)constructed, while also expanding the terrain on which the politics of constitutional memory are fought.41

In service of this broader project of constitutional remembrance, this Article recovers the story of John Harris. It honors him as an individual. It remembers him as one of the “we” who have laid claim to “Our Federalism,” and as one who, more than most, helped mold these foundational ideals in the organizing halls of Sunflower County, in the civic arenas of Los Angeles, and in the marble halls of One First Street. This Article restores John Harris’s historical context—the struggle for racial and economic justice along with the state surveillance, repression, and violence that he and others faced for their activism—to our constitutional discourse. This Article also traces how Harris’s case progressed through the courts and examines the process by which his story came to be erased from our constitutional memory.

Three additional implications follow from the remembrance of Harris’s story. First, this Article introduces a novel theoretical concept: legitimacy laundering. Legitimacy laundering refers to circumstances in which the substantive content and ramifications of a case are veiled in ways that contribute to a doctrine or institution’s acceptance. Culpability for this kind of laundering can rest with courts, commentators, or both, and it can occur intentionally or negligently.

Younger is illustrative of this phenomenon. A close examination of this case’s facts raises questions about the Supreme Court’s legitimating posture of reflexive deference to the state’s criminal-legal system. Scholars have written of a Jim Crow constitutional paradigm and a related constitutional narrative in which federal courts heroically intervened to break a caste system in the American South during the civil-rights movement.42 Some of the Court’s sociological legitimacy—especially with respect to its aggressive use of judicial review—is traceable to the moral capital it earned through that intervention. Concomitantly, judge-made barriers to judicial review have gained legitimacy in part through promoting the ways that those barriers gave way to access during the civil-rights era.43

But this Jim Crow constitutional paradigm can facilitate considerable myopia. For one, as scholars have written, the paradigm can exclude past (and present) horrors against groups like Native Americans and Chicanos.44 And John Harris’s story shows how this narrative can erase systemic racialized injustices against Black Americans to the extent those injustices took place outside specific times (slavery and the Jim Crow era) and specific places (the South).45 If we celebrate the Court’s intervention in racially biased prosecutions in the Jim Crow South while neglecting the Court’s failure to intervene in Harris’s case in Los Angeles, we are left in false comfort with the safeguards that have come to define American federalism. Harris’s arrests in 1965 Mississippi and his arrest in 1966 Los Angeles have more in common than the Jim Crow paradigm allows one to see.

Second, this Article highlights the stakes of internal battles at the Supreme Court, as dueling drafts of Younger traded hands over the case’s three separate arguments. Justice Black’s initial draft was, in the views of some who had expected to join it, insufficiently protective of federal rights. The final draft, together with Justice Brennan’s decision to concur in a pithy, stripped-down opinion, was the result of hard-earned concessions aiming to ensure that the majority’s rhetoric of “Our Federalism” was matched by its explicit affirmance of the role of federal courts in abating irreparable harm.

Today, despite those concessions, some federal courts push the logic of Younger beyond its carefully constructed bounds, stretching the doctrine in ways that facilitate the very irreparable harm it was designed to remediate.46 These expansions have sometimes left economically disadvantaged pretrial detainees without ability-to-pay hearings,47 children languishing in broken foster-care systems,48 and impoverished people facing incarceration for unpaid debts with no realistic access to federal-court protection.49 In terms of both subject matter and the irreparable harms these plaintiffs suffer, their cases fall well outside Younger’s intended scope.

These roving expansions undermine the role of federal courts in our constitutional system. Federal recourse is an indispensable channel for vindicating federal rights for at least two reasons. First, when individuals challenge systemic flaws in state legal systems, it is fundamentally contradictory to suggest these same systems can adequately remedy their own defects. Structural bias cannot be its own solution.50 Second, the Reconstruction Congress adopted 42 U.S.C. § 1983 based in part on the fear that state actors could become acclimated to, and complicit in, routinized harm.51 As Congressman Aaron F. Perry observed during legislative debates, state officials “having eyes to see, see not; judges, having ears to hear, hear not” when confronted with rights violations.52 It is in part for that reason that Congress deliberately protected a role for federal courts through § 1983 and related legislation,53 a principle the Supreme Court affirmed a few decades later in holding that litigants “cannot be deprived” of their right to federal jurisdiction merely because state remedies exist.54 By closing federal courthouse doors, modern expansions of Younger abstention undermine this foundational congressional guarantee of forum choice for constitutional claims and frustrate the protections that the Reconstruction Congress created and that the Justices in Younger actively worked to preserve.

Third, material omissions from American history in the field of federal courts can distort our collective memory, misleading judges, commentators, and students about the consequences of the high-minded constitutional values placed before them. For example, Harris’s experience invites us to reevaluate what it means for federal courts to safeguard a “separate” state criminal-legal system in settings marked by significant federal-local collaboration on criminal prosecutions.

This Article proceeds as follows. Part I offers a window into Harris’s upbringing in Birmingham, Alabama, during a time of massive, violent resistance to civil rights by government officials, police, and terrorists. Part I then provides a detailed account of the long arc of Harris’s work on behalf of racial and economic justice. Part II turns to Harris’s September 1965 move to Los Angeles, just a month after the Watts riots. Harris quickly emerged as a leader of the Progressive Labor Party there. A close ally in that work was a young white Marxist named Jim Dann, with whom Harris had worked closely in Sunflower County, Mississippi. Part II illustrates the tense atmosphere that Harris and Dann encountered upon arriving in Los Angeles and documents the surveillance of Black liberation movements—and of Harris in particular—during that era. Next, Part II describes the shooting of Leonard Deadwyler, Jr. and the following inquest to investigate, led by District Attorney Evelle Younger. At the inquest, Harris led large groups of community members in protest, distributing flyers criticizing police, anti-Blackness, economic exploitation, and war. Four months later, Harris was indicted and then arrested in his home. Based on the pamphlets he had distributed, a grand jury voted to indict.

Part III then documents Harris and his interlocutors’ efforts to stop the prosecution in state and federal court. This narrative also describes Harris’s co-plaintiffs, including Jim Dann,55 Farrel Broslawsky,56 and Diane Hirsch. As the legal battle unfolded, the case’s racial context featured prominently. In a key moment during the legal journey, a three-judge federal panel enjoined the syndicalism law before the Supreme Court reversed it on direct appeal, citing principles of equitable restraint and federalism. Notably, the case was argued three times over the course of three successive Supreme Court terms. This Part, for the first time, details the internal dynamics of the Court during those delays, including a moment in which a more civil-rights-protective opinion by Justice Brennan achieved five votes—until the coalition shattered in a dramatic, chaotic exchange. Ultimately, Justice Black authored a majority opinion with soaring federalist rhetoric, as Justice Brennan faltered in his final attempts to match that rhetorical fire with an ode to the history of constitutional adjudication. As a result, even though the Court ruled in June 1969 that an Ohio syndicalism statute much like the one at issue in Younger was unconstitutional, Harris did not benefit from that ruling until two years later, when a state court finally granted him a writ of habeas corpus.

Part IV explores the implications of failing to share Harris’s story. These implications range from Younger abstention’s enhanced legitimacy through selective historical memory to its problematic expansion beyond its original bounds. In restoring the racial context to Younger v. Harris, this Article demonstrates that what we forget about our constitutional past shapes—and constrains—our constitutional future.