Federal courts shape our lives in two main ways. First, both Supreme Court justices and judges in lower courts decide policy issues of major importance that define the scope of our basic constitutional rights. We see this most notably in the Supreme Court’s high-profile decisions on matters like same-sex marriage. But a second, less noticed judicial function also has a profound impact on our civic life. Federal judges, largely in the lower courts, rule on specific allegations that the constitutional rights of particular citizens were violated. In doing so, those judges implement the rights that they themselves have defined.
The federal courts’ implementation function is very poorly understood by most people. But rights matter only if they are implemented by judicial remedies. And federal judges have been increasingly rationing remedies over the last four decades. One example of many occurs in cases of excessive police force, in which victims today must prove that perpetrators had no conceivable explanation for their actions. For low-income people who face discriminatory police and hostile state courts without high-priced counsel, such a barrier is practically insurmountable.
Can anything be done to change this? Most obviously, we can change the composition of the federal bench, from the high court on down. But there’s another avenue that people should know about: Congress has the constitutional authority to require federal courts to mandate effective remedies for those whose rights were violated. The current occupants of Capitol Hill will obviously want no part of this project. But progressives should keep it in mind as a potential weapon in the battle over the courts in the years to come.
Under Article III of our Constitution, Congress possesses wide authority to shape when and how courts wield the power to define and enforce constitutional rights. But Congress has let this power fall into disuse. Since the late nineteenth century, it has delegated more and more power to the federal courts to set the judicial agenda. Over the twentieth century, the courts’ prestige grew, making it harder for Congress to wrestle away this control. Politicians also realized they could rely on the courts to pursue unpopular policy goals, from desegregation to deregulation, without taking flak themselves. And when it comes to constitutional remedies, it turns out that federal judges have a strong institutional interest in shaping their own caseload, whereas legislators have proved at best indifferent to the quality of federal court remediation.
Using their largely unfettered independence, federal judges have had free rein for the past century in deciding whether, how, and for whom federal courts should enforce the Constitution. In the 1950s and ’60s, lower federal court judges made exceptional efforts to disassemble Jim Crow. But since then, federal courts have crafted doctrine that makes it harder and harder for ordinary people to vindicate basic constitutional rights, by throwing up a host of procedural barriers and technical limitations that dramatically ration the relief available after a constitutional violation.
Here’s an example. In the late 1950s and ’60s, state prisoners whose arrests or convictions flowed from constitutional violations had free access to federal courts to obtain release. Today, in contrast, those prisoners must first meet tight deadlines, then they must satisfy a complex rule requiring their challenges to be presented first in state court, and finally they have to show that a state court ignored a “clearly established” Supreme Court precedent when they were convicted. Since most state court criminal judgments do not contain any actual reasoning, but simply state a conclusion, this last rule is especially Kafkaesque.
In part, these changes reflect the Court’s post-1980 conservative swerve. But they also reflect an institutional concern, shared by liberal and conservative jurists alike, for managing the case flow of an overworked federal bench. The simple fact is that constitutional violations today are endemic, especially in policing and state criminal justice. Both liberal and conservative judges know that if they took the Constitution’s rights portion seriously, they would be swamped. By throwing up procedural bars to relief, judges dissuade people from filing in the first instance, but also make it easier to dismiss cases without any discovery or other costly judicial process.
But Congress could change all this if it wanted to. What specifically could Congress do? To start with, it should narrow or abolish the doctrine of “qualified immunity,” which bars liability for constitutional violations except for “the plainly incompetent [official] or those who knowingly violate the law.” It should do the same with similar doctrines, such as the rule that evidence gathered in violation of the Fourth Amendment will not be excluded if the police were not at fault. It should also make it easier for people to obtain institution-wide relief on an ongoing basis, such as by consent decrees over state police, jails, and prisons. Federal courts once provided effective relief against segregated schools and brutalizing police forces, but they have pulled back. They can and should again be in the business of ruling on class actions that challenge the institutionalized infliction of constitutional harms in state schools, courts, and prisons.
Finally, Congress should rein in the Supreme Court’s ability to act as a supernumerary bite at the apple for regulated industries by narrowing that tribunal’s appellate jurisdiction. There is no reason, for example, why those who lost in Congress on the Affordable Care Act (ACA) should get two further chances to scupper that legislation. Congress tomorrow could constrain the kinds of challenges that can be filed against federal regulation, making filibustering lawsuits like those brought against the ACA difficult or perhaps even impossible to pursue.
Of course, our current legislators are unlikely to do this (or much else) soon. But the reform of federal courts as an institution isn’t even on the progressive agenda. This is a major mistake. As the Obama Administration has learned, judicial review matters. Correcting the error means abandoning nostalgia for the Warren Court, and embracing the fact that judicial independence is valuable only if it serves just, progressive ends. The Framers gave Congress the power to regulate the courts so that they would serve the people. It’s high time we seized that obligation and opportunity.