- It is no secret that John Marshall’s famous promise of a remedy for every invasion of a right must be taken with a grain of salt. The Supreme Court and Congress (but principally the Court) have developed a number of doctrines that operate to withhold remedies for meritorious constitutional claims. The immunity doctrines in constitutional tort, exceptions to the exclusionary rule, the harmless-error doctrines, statutory preclusion, and abstention doctrines all withhold remedies for justiciable and proper constitutional claims. And yet, there clearly are limits on the Court’s remedial discretion. All would agree, for instance, that the subject of a criminal indictment is entitled to dismissal of the charges if able to convince the court that the statute authorizing the prosecution is unconstitutional.
Unfortunately, we have no widely accepted theories of when and how courts may withhold constitutional remedies, and charges of doctrinal incoherence abound. In a recent paper, I sought to answer the “when” question through a descriptive analysis that took a novel, functional account of constitutional remedies as its point of entry. I showed that the Court limits its development of doctrines that withhold relief to claims for remedies that function as substitutes for rights irretrievably lost as the result of wholly concluded constitutional wrongs. But when faced with claims for specific remedies to ameliorate ongoing wrongs, the Court has behaved quite differently. It has regarded some form of relief as obligatory, even though it has sometimes instructed claimants to seek remedies in alternative forums.
In this paper, I seek to answer the “how” question and to defend the Court’s de facto but untheorized approach to withholding constitutional remedies. I do so by responding to calls for a revival of one strand of the Warren Court’s non-retroactivity jurisprudence, and to the charges of doctrinal incoherence that pave the way for these calls. I reject non-retroactivity and defend the Court’s remedy-limiting method for withholding constitutional relief. A remedy-limiting framework better rationalizes recent developments in constitutional lawmaking, permits a context-sensitive balancing of interests in all cases where such a balancing is appropriate, and forbids such balancing in all cases where it would be inappropriate. It thus provides concrete guidance on when courts may withhold relief from parties who have established constitutional injury, and when they may not. It also respects Article III limits on the judicial power – limits that non-retroactivity doctrines transgress.