Constitutional Remedies and Public Interest Balancing

By Greabe, John M. | The William and Mary Bill of Rights Journal, March 2013 | Go to article overview

Constitutional Remedies and Public Interest Balancing


Greabe, John M., The William and Mary Bill of Rights Journal


ABSTRACT

The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity. But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies usually provided at law. The conventional account has things backwards when it comes to constitutional remedies. The modern Supreme Court frequently requires the withholding of substitutionary constitutional relief under doctrines developed to protect the perceived public interest. Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine, at least when the underlying claim is justiciable and subject to neither a judicial federalism doctrine nor statutory preclusion.

This paper details the reversal of the conventional account of remedial power and advances a two-part hypothesis that the Court's behavior traces an appropriate constitutional boundary. The hypothesis is as follows. First, substitutionary constitutional remedies, while integral to the proper functioning of our constitutional order, are individually contingent and susceptible of legislative or judicial expansion, contraction, or replacement as the perceived public interest dictates. But second, specific relief must be available for justiciable and meritorious claims of constitutional right to which neither a judicial federalism nor a statutory diversion doctrine applies, and an effective constitutional remedy ultimately must be available even in these exceptional cases.

INTRODUCTION

The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity.1 But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies2 usually available at law.3 The conventional account has things backwards when it comes to constitutional remedies.4 The modern Supreme Court frequently requires the withholding of substitutionary constitutional relief under doctrines - qualified immunity,5 exceptions to the exclusionary rule,6 harmless error rules,7 the unavailability of most "new law" on collateral review8 - developed to protect the perceived public interest.9 Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine,10 at least when the underlying claim is justiciable and subject to neither a judicial federalism doctrine11 nor statutory preclusion.12

This paper details the reversal of the conventional account of remedial power and suggests that its formal recognition could help to advance the debate over constitutionally necessary remedies. This debate ranges between those who, on one end of the spectrum, understand the maxim "where there is a right, there is a remedy"13 to be a binding norm,14 and those who, on the other, conclude from their examination of history that the only mandatory remedy for a constitutional violation is nullification of a void enactment.15 Between these positions lies the influential view ventured by Professors Richard Fallon, Jr., and Daniel Meltzer. 16 Fallon and Meltzer's argument, while normative in its aspirations, is largely descriptive; it seeks to rationalize "the doctrines and practices that have traditionally comprised the law of constitutional remedies."17 So what do these doctrines and practices tell us, according to Fallon and Meltzer? First, there should be a strong but not always unyielding presumption in favor of individually effective relief for every constitutional violation.18 Second, there must exist a sufficient scheme of available remedies to ensure that constitutional rights do not become nullities, and that government officials remain answerable as a systemic matter to the demands of law.19

I adopt Fallon and Meltzer's methodology and, looking to the doctrines and practices that comprise the modern law of constitutional remedies, seek to draw lessons from the distinct ways in which the modem Supreme Court has treated substitutionary and specific constitutional remedies with respect to public interest balancing.

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