Friday, February 18, 2022

Understanding our Crises in Constitutional Justice

Guest Blogger

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

Aziz Z. Huq

The Collapse of Constitutional Remedies aims to situate current liberal and progressive dismay about the federal courts in a historical and, more pointedly, structural context.  It begins with a sharp contrast: There is a poverty of remedies for those afflicted directly by state violence. What commentators since Dicey have understood as a central element of the rule of law—ordinary remedies for ordinary, unlawful violence by the state—is largely missing in action. Each Term of the Court, however, this lacuna sits uncomfortably alongside the warm welcome offered firms challenging the regulatory state. The result is a remedial chiaroscuro. The overall effect is one painted by not Justices, not legislators or the Constitution’s drafters, in which poverty and marginalization predict a diminished chance of being heard—let alone made whole—in court. 

This bleak contrast is not simply, or even most importantly, a function of fifty years’ of conservative majorities on the Supreme Court. It instead arises organically from the political economy—the matrix of institutions, opportunities, and incentives—seeded by Article III of the Constitution.  That provision’s drafters assumed a national government without parties. They also worked with the belief that the president would be highly constrained by a limited supply of potential judges (only Yale, Harvard, and William and Mary had even a single chair in law before 1790). And they took for granted that new legal materials would be produced in only a slow trickle, leaving adjudicators little creative wiggle room. 

Obviously, none of these conditions held fast. Today, a partisan national government selects from an ideologically heterogenous supply of lawyers. They in turn can range across a vastly wider range of legal materials. Despite earlier claims to constrain judges, the increasingly dominant originalist modality leaves wide open the spectrum of permissible interpretive choices. The eponymous ‘collapse’ of remedies against illegal state violence bubbles up from the larger ‘collapse’ of these “unspoken presuppositions” (in Fred Schauer’s felicitous words) of Article III. Without understanding that second, larger collapse, efforts to come to grips with a judiciary of increasingly undiluted partisan loyalty (respecting remedies and far beyond) will be of little avail.

In a sequence of incisive and wide-ranging commentaries, Professors Rachel Bayefsky, Adam Davidson, Lee Kovasky Marin Levy, and Fred Smith identify numerous extensions, clarifications, and grounds for resisting my effort to situate the present conjuncture in historical and structural context in The Collapse of Constitutional Remedies.  I owe all of them—and blog host Jack Balkin—many thanks for their close reading and careful engagement. Trying to respond to all of their excellent suggestions and objections would try the readers’ patience, even of it would rebound to my intellectual benefit.  In what follows, I select and reflect on what seem to me some of the most important observation that Bayefsky, Davidson, Kovasky, Levy, and Smith offer. Their contributions, though, emphatically reward greater study and reflection than I will muster here.

To evaluate critically my account of remedial chiaroscuro, it would be natural to question whether victims of overt physical violence by the state are left empty-handed, or whether regulated firms really monopolize the public good of constitutional adjudication. Few doubt the first point: In a unanimous October 2021 per curiam opinion, the Court indeed just made it even harder than it was to sue police. The absence of liberal dissent to that opinion brings out a point made by Marin Levy, echoing an important 2013 article in which she offered a bracing intellectual history of “floodgates” claims by the Justices: She showed in that piece how judges of all ideological stripes have a stake in maintaining certain kinds of institutional equilibria, and how this “institutional loyalty” can prove more powerful than substantive preferences. On the other hand, the recent retrenchment of qualified immunity cuts against her modulated optimism about the possibility of bipartisan support for the doctrine’s reform. As Adam Davidson argues in a forthcoming paper (not posted but which I’ve been fortunate to read), perhaps the most likely effect of paring back qualified immunity would be a weakening of the substantive Fourth Amendment law of unreasonable force—although one can also fairly doubt that there is much room for this to be dialed back from its present penurious level.   

Rachel Bayefsky, however, notes that recent structural constitutional claims respecting the appointment and removal of federal officers have not left named plaintiffs entirely free of regulation.  As she rightly observes, the anti-regulatory instrumentalization of the separation of power is coming into conflict here with earlier conservative efforts to limit judicial redistribution through justiciability doctrine. Such conflicts, I think, are likely to multiply as the conservative legal project moves from its defensive pupae to its offensive adulthood.  They are the symptoms of regime change in constitutional law, and recall Justice Frankfurter’s agonies about judicial activism were than a half-century ago at a parallel conjuncture . I also agree with her that some individual plaintiffs won’t gain an absolute immunity from regulation (although they do get the time value of delay). But it is also worth bearing in mind that the same remedial limitation are unlikely to hedge the downstream effects of deconstructing Chevron deference or a nondelegation doctrine on steroids.       

My picture of a regressive shift in how remedial allocation is complicated further by Lee Kovarsky’s observation that judges’ incentives are shaped by what he calls a “small-and-well-defined cohort of conservative legal elites,” whose members provide emotional and intellectual support for judges. My account, Kovarsky fairly notes, misses these Gramscian intellectuals of the repsent conservative counterrevolution on behalf of market, Christendom, and traditional hierarchy.  Again, I agree: In earlier work, Professor Jon Michaels and I invoked the idea of a “thick political surround” to capture the effect that Kovarsky describes.  I would, indeed, amplify his point by asking how the dominant prestige structure surrounding law schools reinforces the same judicial culture, and hence underpins the regressive patterning of remedies. Perhaps distinct among university departments, law schools have a close and delicate relation with political power. They count their achievements in terms of how many Supreme Court clerkships they score. They loudly tout when their scholars are cited by the Justices, but not pro se litigants. It seems fair to me to ask, along with Kovarsky, how much dominant currencies of law school prestige have contributed to our present crises.

Perhaps the more serious reservations expressed by commentators concern the prospects and avenues for reconstruction. Fred Smith raises the possibility that federal judges “might be able to recalibrate remedies in ways that are attentive to their limited political capital.”  His suggestion builds on his earlier scholarly work arguing for a “systemic violations” exception to Younger abstention doctrine. Adam Davidson, striking a more impatient tone with my seeming monkish quietism, expounds on the need to “expand our imagination beyond currently existing constitutional limits.” 

Smith is right to recognize that neither constitutional text nor existing doctrine wholly foreclose creative judicial intervention on behalf of marginalized litigants. And I agree that there is an important value to work, like his work on abstention, that illuminates unexplored pathways within the doctrine.  Such scholarship destabilizes the powerful temptation, particularly manifest among law students, to treat the contingent as natural and even immutable. Yet Smith also senses the difficulty of endogenous reform springing from the bench when he concludes that “the best solutions to our crisis of accountability rest with the people themselves.” But the remedial collapse that he and I alike decry is a result of Article III’s porousness to partisan, ideological forces. Of course, those same forces presently exercise a hegemonic agenda control in “democratically accountable bodies”—making that pathway less than ideal as an escape path. 

I think Davidson recognizes this point when he says that institutional independence is a “myth” because “we cannot entirely separate off one actor or institution from the rest of our society.” This is true, but not so true that we should reject the line of argument going back to Montesquieu celebrating the institution of free-standing tribunals as potential safeguards against when the French nobleman pithily called “despotism.” I see no reason to give up on the possibility of designing such bodies (and indeed have drawn in comparative work on other countries’ constitutions as inspiration here). It may be too late for us, given the rigors of Article V in an age of extreme polarization, to think of starting from scratch. But it not too late for others to learn from our mistakes.       

I need to close by thanking Bayefsky, Davidson, Kovasky, Levy, and Smith. I think all of us share dismay at the sight of a federal judiciary increasingly indifferent to rule-of-law arguments in favor of individual remedies, especially when it comes to the state’s jackboot, batons, chokeholds, and tasers.  But they all share a core scholarly quality that is as important as this concurrence: A rigorous and critical attention to the actual connections between law, institutional design, and shifting political economies that sets aside the vacuous nostrums of formalism, and instead seeks to understand the unfolding catastrophes of American law on their own, unvarnished terms.

Aziz Z. Huq teaches at the University of Chicago Law School, and is the author of “The Collapse of Constitutional Remedies.”

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