Davis on Shelby County's Right Against a Remedy

The right-to-a-remedy is a standard in our constitutional songbook, going back to Marbury v. Madison, even before. But what about rights against a remedy? While we might not think about such things often, they're there. And the Court in Shelby County elevated one of them to a higher level, with potentially devastating consequences to our system of constitutional remedies against the states.

So argues Seth Davis (UC Irvine) in his Louisiana Law Review piece, Equal Sovereignty as a Right Against a Remedy.

Davis argues that the Court's newfangled "equal sovereignty" principle that contributed in Shelby County to the demise of Section 4 of the VRA (the coverage formula for preclearance) is a right against a remedy--but one of a different sort altogether. Davis says that "equal sovereignty" stands apart from other rights-against-remedies, because the Court neglected to consider any countervailing interests or factors, or whether there are other ways to respect "equal sovereignty"--in short, that the Court used "equal sovereignty" as a trump card on the right to a remedy (in Section 5 preclearance). Davis explains:

Rights against remedies are usually shaped by considered judgments about the whole remedial scheme. Due process, for instance, limited remedies that might "intimidate" regulated parties from seeking judicial review. [See Ex Parte Young.] . . . Equal sovereignty imposes a different kind of right, it appears. The Shelby County majority simply did not address Justice Ginsburg's argument that a bailout process adequately protected a state's equal sovereignty.

Thus, the Court treated Shelby County more like a third party claiming an equal protection right against reverse discrimination than as a recidivist jurisdiction with a history of voting wrongs. . . .

At a minimum, this newfound equal sovereignty right against remedies is unusual and troubling. Equal sovereignty requires the Court to strike down a constitutional remedy without considering whether that remedy is necessary to redress constitutional violations.

The result: "equal sovereignty" as a right-against-remedies "has the potential to undercut the system of constitutional remedies against states.