"[N]o sound reason exists for holding that federal courts should not have the power to issue injunctive relief against the commission of acts in violation of a plaintiff's civil rights by state judges acting in their official capacity."127The Fourth Circuit has more recently taken a similar position.128
Despite this general acceptance of an injunctive relief exception,129 concern has been expressed about interfering with the exercise of state judicial discretion. As stated by Judge Dillion, dissenting in Littleton:
[In the cases... in which this [exception] has been applied, the equitable relief granted has invariably been in the form of a prohibitory injunction, confining such officials to the limits of their legal authority. There is a great difference between ordering an official not to do a particular act, measurable by objective standards, and in ordering him to exercise his discretion in a certain general way, measurable only by subjective standards.130The Fifth Circuit has expressed a similar note of caution in a case where the plaintiff in effect was asking the federal court to hold the decision of a state appellate court to be unconstitutional. While it ended up relying on collateral estoppel, the court did observe that the plaintiff's "requested relief would directly and irrebutably interfere with a discretionary judicial function."131 However, the concern reflected in such cases is not with the threat to judicial independence stemming from unhappy litigants, as it is in cases involving actions for damages. The concern is rather with the sensitive relationship between state and federal courts when the latter attempt to regulate state judicial conduct. Indeed, the Supreme Court raised this federalism and comity concern in connection with injunctive relief directed against judges and prosecutors who were allegedly enforcing the criminal laws in a racially discriminatory way.132
The injunctive relief exception to judicial immunity seems to be the equivalent of a bifurcated approach to the meaning of "person" under section 1983; that is, a judge, because he is absolutely immune, is treated as if he were not a "person" for damages purposes, but is treated as a "person" for injunctive relief purposes. Despite the difficulty in another context with such a bifurcated approach,133 there is no such difficulty here. The Court would use the Ex parte Young134 fiction and consider the judge being sued for injunctive relief as an individual stripped of his official functions and thus as a "person" for 1983 purposes. Furthermore, applying judicial immunity to a judge does not mean that he is not a "person," but only that he is a "person" who is absolutely immune from liability for damages and not from injunctive relief.
