Monday, February 14, 2022

The Most Endangered Branch?

Guest Blogger

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

Fred O. Smith, Jr.

Although this book, as the title suggests, describes the collapse of constitutional remedies, the book is much broader than that. Prof. Aziz Huq provides a sophisticated, original account of the political economy of constitutional adjudication. How is the federal judiciary shaped by other branches and actors? This is a classic inquiry in constitutional commentary. As Prof. Huq observes, this question dates back to the earliest days of the republic; Alexander Hamilton dedicated significant attention to this question in Federalist Papers 78 and 79. On Prof. Huq’s account, however, the constitution’s mechanisms for protecting judicial independence were informed, in part, by assumptions and conditions that unraveled. He argues that unanticipated threats to the judiciary have created incentives for remedial conservatism.

The book, to be sure, documents obstacles to achieving constitutional accountability. Those obstacles will likely be familiar to many readers of this blog. Under Los Angeles v. Lyons, for example, a plaintiff who has suffered unlawful harm may not seek prospective relief unless she can demonstrate that she is highly likely to face that same abuse again. Barriers to damages lurk at every turn as well through a range of de jure and de facto immunities. Additionally, federal damages lawsuits against individual federal officials for constitutional violations have been sharply circumscribed. (Prof. Huq reminds readers of Sergio Adrián Hernández Güereca, a teenager who was playing with his friends when he was killed by a federal agent. Because the child was on the other side of the U.S.-Mexico border when the agent killed him, the Supreme Court denied the child’s family a damages remedy. That outcome is a part of a long line of cases narrowing damages remedies against federal officials.) Prof. Huq also takes aims at some substantive and procedural doctrines as well that may not classify as “remedies.” For example, he notes that an officer may stop and frisk an individual when that officer only has “reasonable suspicion” that the detained person has committed a crime. Prof. Huq’s critique is in the tradition of scholars like Devin Carbado, Erwin Chemerinsky, and Leah Litman, all of whom have written about various dimensions of the collapse of constitutional accountability.

What makes this book distinctive is Prof. Huq’s description of how endemic features of the nation’s constitutional design facilitated these obstacles. The constitution protects judicial independence primarily by insulating individual judges from undue influence. This includes life tenure (absent impeachment) and a prohibition on diminishing federal judges’ salaries. What’s missing, Prof. Huq observes, is protection for the judiciary as an institution. “There is something a touch quixotic about shielding an individual judge while the institutional judiciary remains so fragile a construction. What good can a single judge or justice do if she lacks the shield of institutional authority?” (p. 29).

Among these institutional threats is Congress’s ability to structure and eradicate courts. The constitution leaves it to Congress to establish and ordain lower federal courts. And as early as 1802, Congress and President Jefferson used this power to eliminate judicial positions. When, in Stuart v. Laird, a litigant challenged that move, the Supreme Court only sparsely addressed the issue, neglecting to forcefully defend its institutional prerogatives. In telling readers that story, Prof. Huq is not critiquing the court, so much as he is offering an early example of judicial fragility. Alongside this example, he notes that federal courts lack the power to enforce their own judgments or to fund themselves.

As the federal judicial docket exploded in light of expanding jurisdiction under Judiciary Act of 1875, the Ku Klux Klan Act of 1871, and expansive interpretations of the latter in the 1960’s, the judiciary as an institution shrunk in the face of its own growing power. Prof. Huq traces this trend to the judiciary’s institutional limitations and lack of protection. Remedial conservativism is self-defense. To be sure, he notes that the Court has little reluctance in correcting constitutional structural deficiencies. At the same time, however, the Court protects its prerogatives through remedial doctrines that impede the enforcement of rights when everyday citizens face illegal state violence and coercion.

Prof. Huq does not reveal much optimism that courts will or can fix this problem. Remedial collapse, after all, is a consequence of a systemic design that courts did not create and courts cannot correct. That said, what readers (including federal judges) can ponder is how courts might be able to recalibrate remedies in ways that are attentive to their limited capital. Lowering barriers to obtaining nominal damages? Involving governmental actors in the construction of institutional remedies so as not to unduly foster costly and embarrassing resistance?  I offer these not as an exhaustive or even desirable list, but rather to make the point that when it comes to constitutional enforcement, courts can be mindful of their institutional deficiencies without fully abdicating their role.

In the end, Prof. Huq sensibly suggests that the most durable solutions are likely to come from democratically accountable bodies. Congress has the ability to create remedies that constrain judicial discretion. While courts have created barriers to constitutional accountability that have little relationship to extant statutory text, Congress can pass laws that explicitly eradicate or amend some of those judge-made barriers. Prof. Huq stops short of laying out explicitly what such a legislative program of reform would look like. That is beyond the scope of this already ambitious book. What the book does masterfully show is why the best solutions to our crisis of accountability rest with the people themselves.

Fred O. Smith, Jr. is Professor of Law at Emory Law School. You can reach him by e-mail at

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