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 fred.smith@emory.edu.