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MR. JUSTICE STEWART, with whom MR. JUSTICE HARLAN joins, concurring. [*]

The questions the Court decides today are important ones. Perhaps as important, however, is a recognition of the areas into which today's holdings do not necessarily extend. In all of these cases, the Court deals only [p55] with the proper policy to be followed by a federal court when asked to intervene by injunction or declaratory judgment in a criminal prosecution which is contemporaneously pending in a state court.

In basing its decisions on policy grounds, the Court does not reach any questions concerning the independent force of the federal anti-injunction statute, 28 U.S.C. § 2283. Thus, we do not decide whether the word "injunction" in § 2283 should be interpreted to include a declaratory judgment, or whether an injunction to stay proceedings in a state court is "expressly authorized" by § 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983. [1] And since all these cases involve state criminal prosecutions, we do not deal with the considerations that should govern a federal court when it is asked to intervene in state civil proceedings, where, for various reasons, the balance might be struck differently. [2] Finally, the Court today does not resolve the problems involved when a federal court is asked to give injunctive or declaratory relief from future state criminal prosecutions. [p56]

The Court confines itself to deciding the policy considerations that, in our federal system, must prevail when federal courts are asked to interfere with pending state prosecutions. Within this area, we hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. [3] Such circumstances exist only when there is a threat of irreparable injury "both great and immediate." A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face, ante at 53-54; cf. Evers v. Dwyer, 358 U.S. 202, or if there has been bad faith and harassment — official lawlessness — in a statute's enforcement, ante at 47-49. In such circumstances, the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights. Cf. Georgia v. Rachel, 384 U.S. 780.

NotesEdit

^  [This opinion applies also to No. 7, Samuels et al. v. Mackell et al., and No. 9, Fernandez v. Mackell et al., post, p. 66; No. 41, Dyson et al. v. Stein, post, p. 200; and No. 83, Byrne et al. v. Karalexis et al., post, p. 216.]

^ . See also Cameron v. Johnson, 390 U.S. 611, 613-614, n. 3; Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2.

Cf.Law Students Civil Rights Research Council v. Wadmond, post, p. 154; Wisconsin v. Constantineau, 400 U.S. 433; Rosado v. Wyman, 397 U.S. 397.

^ . These considerations would not, to be sure, support any distinction between civil and criminal proceedings should the ban of 28 U.S.C. § 2283 which makes no such distinction, be held unaffected by 42 U.S.C. § 1983.

^ . The negative pregnant in this sentence — that a federal court may, as a matter of policy, intervene when such "exceptional and extremely limited circumstances" are found — is subject to any further limitations that may be placed on such intervention by 28 U.S.C. § 2283.