Asymmetric Specification, Professional Norms, And Abstention

Guest Blogger

For the Balkinization symposium on Aziz Huq, The Collapse of Constitutional Remedies (Oxford University Press, 2021).

Lee Kovarsky

The court hereby dismisses the excessive force claim because the constitutional law wasn’t clearly established. The court hereby admits the constitutionally tainted evidence because police reasonably believed they had legal authority for unlawful seizure by force. The court hereby refuses to address the constitutional error because at least one jurist might agree with the state decision.

And so it goes.

Aziq Huq’s The Collapse of Constitutional Remedies (“Collapse”) is a brilliant-but-dispiriting account of a very particular taste for judicial abstention. Per Huq, the Senate’s advice-and-consent function combines with judicial self-interest to produce a federal bench that skimps on remedies for unlawful state coercion. Huq starts with the familiar observation that Constitution’s third article was skeletal, and that it left much for subsequent institutional settlement. Appointed judges were to be, in the Framers’ thinking, non-partisan technocrats who resolved disputes by reference to reasonably determinate legal texts. The “law” would be largely unresponsive to the fields of political gravitation operating on the other branches.

Huq argues that three developments proved the Framers’ assumption unwise. First, advising-and-consenting Senators developed national partisan allegiances that trumped any institutional interest in depoliticized judicial appointments. Second, democratized legal education expanded the political spectrum of lawyers qualified for federal judging. Third, the area of legal uncertainty exploded—both because of more federal legislation and because people began acknowledging frankly the indeterminacy of legal texts. The result was a more heavily politicized judiciary, the modern version of which had institutional interests in reduced caseloads.

Collapse moves through the history by tracing the rise and fall of four remedies: causes of action against (1) state and (2) federal officials, (3) the habeas corpus writ, and (4) the Fourth Amendment exclusionary rule. The historical account leaves little doubt about the linkage between constitutional structure and the modern remedial deficit in state coercion cases. And as these remedies for unlawfully coercive behavior move in one direction, remedies for claims of unconstitutional structure—sounding in familiar registers of federalism and separated powers—move in the other. This remedial distribution privileges the interests of structurally advantaged groups over their more vulnerable counterparts.

I agree with Huq’s explanatory modeling almost completely, and what I tender here is merely a more fulsome account of (what I take to be) a central claim about abstention. (I use “abstention” as a general category that captures all remedial restriction.) Huq identifies structural biases “bred in constitutional bone,” and he says that, when they encounter certain shifts in national politics, those biases explain why the Court might abstain in state-coercion cases. But if the structure is biased against relief, then such bias might be expressed in at least two different ways—by (1) reducing the scope of the substantive right, or by (2) limiting remedies for violations thereof. I offer some additional explanation for how judges settle on a particular mix of the two and, by extension, under what conditions they might prefer abstention.

One can fairly infer from the book’s declared subject matter that Huq believes the distribution of judicial effort as between substance and abstention will depend on certain things. Indeed, he emphasizes subtlety as a reason why those seeking to re-draw boundaries might favor abstention:

Remedial redesign is a low-key way for courts to adjust the sorts of power the state can exercise. When the Court intervenes by modifying a remedy, its decision is rarely as newsworthy as when it announces a new right. Decisions about remedies are also technical. They are hard for nonspecialists to parse. Their practical effect often depends on how one particular remedy interacts with other remedial pathways, or the manner in which different parts of our legal system hang together. Thus, they cannot be understood in isolation.

(Emphasis mine.) I want to identify at least two other considerations that dictate the relative desirability of abstention strategies. The first involves the degree to which remedial limits are decisionally specified, relative to substantive ones. The second involves how narrow professional communities of legal elites dispense esteem.

First, if a judge disfavors relief for unlawful coercion, then they would prefer abstention to substance under conditions of what I’ll call “asymmetric specification.” All other things being equal, the judge would find it easier to disable relief by adopting whatever strategy—remedial or substantive—is less decisionally specified. If the judge is precedent-abiding, then professional norms against overruling prior decisions do less constraining in under-specified environments. On this theory, the judge’s appetite for abstention is contingent upon specification. The law of state coercion is specified asymmetrically because there are lot of decisions that specify substantive limits, and fewer specifying remedial ones. A substantive revision simply faces more decisional obstacles than does a new abstention rule. I do not want to short-change Huq. His reference to “low-key” activity might be something along the lines of what I’ve described here—because the judge’s distaste for relief in state-coercion cases requires no frontal assault on established substance. In crassly economic terms, the degree of decisional specification influences the “cost” of abstention.

Second, and with respect to what one might conceptualize as “demand,” judges’ preference for abstention obviously depends on how that approach is received by communities that they care about. When does a subtle move towards state coercion exceed the psychic returns of a more open embrace? The answer turns on the response of the relevant communities to which a judge belongs, including a national political coalition and a narrower cohort of legal elites. A national community of lightly informed laypeople is unlikely to generate strong incentives for abstention; a subtle kiss to state coercion may not produce political rejection, but it will produce little political celebration. Judges, however, are also part of elite legal communities that dispense chunks of professional esteem; the availability of that esteem plausibly affects norms and judicial behavior. And that community (of legal elites) certainly rewards rear-guard abstention strategies—creating psychic upside and professional payoffs without political blowback.

I confess that I’m modeling at ten-thousand feet, but the two points combine roughly as follows. Given constitutional structure, one can expect more abstention when (1) substantive law is more densely populated with decisional constraints and (2) more judges belong to professional communities that perceive the effect of, and dispense esteem for, abstention rules. Maybe its variables are a little obvious, but this model fits the data reasonably well. For purposes of an accessible illustration, simply consider the development and judicial consideration of SB8, the Texas abortion restriction. (I am going to refer to abortion restrictions as coercive for the purposes of illustrating the point, although I expect that certain people will find that characterization off-putting.)

Start with specification symmetry. On the substantive side of the coercion equation, and as of today, controlling Supreme Court decisions foreclose certain abortion restrictions. SB8 therefore includes a clever remedial umbrella. Private parties unaffected by an abortion can sue for civil penalties (statutory damages) against people who facilitated (or intended to facilitate) an abortion taking place after fetal cardiac activity, with no official involvement required—other than the judge necessary to adjudicate the civil suit. The statutory penalty is high enough to dissuade abortion providers from performing abortions, and others from facilitating them. Because the statute barred nonjudicial officials from any enforcement role, SB8 made it difficult to get a pre-enforcement injunction against the unconstitutional abortion constraint. Sovereign immunity shielded the state itself, and Texas plausibly argued that there was no enforcing official to sue under Ex parte Young. (Young formalized a long tradition of permitting, as a preemptive strike against unconstitutional state action, pre-enforcement suits against state officers.)

On the substantive side, SB8 had nowhere to hide; the underlying restrictions were invalid under Planned Parenthood v. Casey and Roe v. Wade. Because of asymmetric specification, however, there was room for creative abstention. Young had language disfavoring injunctive suits against state judges, although the language had never been considered in reference to a state legislative framework like SB8: designed for the sole purpose of exploiting a state-judge exception. In other words, the pertinent law of remedies was under-specified. That under-specification created room for the SB8 proponents to argue, and judges to entertain, the idea that state judges were immune from Young suits, which had the broader effect of validating remedial abstention. The decision in the Supreme Court’s SB8 case—seizing on the remedial indeterminacy from Young—did not “overturn Roe,” but it’s now near impossible to get an abortion in Texas.

And SB8 certainly demonstrates the professional esteem that comes with comes with innovative abstention strategies. Former Antonin Scalia Clerk and former Texas Solicitor General Jonathan Mitchell has been broadly credited as the architect of SB8’s remedial trick, and he is hailed as a conquering hero in certain conservative legal circles. The norming professional affiliations that Mitchell cares about are not some broad cross-section of a political community; they are The Hoover Institute and The Federalist Society. He is not a judge, but Mitchell’s rocketing profile proves the important point: an elite professional community stands ready to dispense the esteem crucial to encourage abstention strategies.

*          *          *

And so it went, again.

The contemporary Supreme Court is controlled by Justices who share not just broad political preferences, but also membership in a small-and-well-defined cohort of conservative legal elites. When confronted with precedent that defines more boundaries for substantive change than for remedial innovation, one should expect such jurists, operating under the structural influences that Huq describes, to gravitate towards abstention rules in state coercion cases.

Lee Kovarsky is the Bryant Smith Chair in Law and the Co-Director of the Capital Punishment Center at the University of Texas School of Law