Friday, May 29, 2015
Samuel R. Bagenstos (University of Michigan Law School) has posted Who is Responsible for the Stealth Assault on Civil Rights? (Michigan Law Review, Vol. 114, 2016 Forthcoming) on SSRN. Here is the abstract:
Although every practicing lawyer intuitively knows that a legal right or obligation is worth nothing more than the remedy for its violation, journalists and the general public too rarely focus on the important remedial questions addressed by the courts. That is a shame. As Sarah Staszak shows in her recent book, No Day in Court, the Supreme Court has repeatedly closed off avenues for enforcing civil rights in recent years. But rather than attend to these incredibly consequential remedial decisions, journalists — and even many scholars — have generally focused on the Court’s substantive decisions regarding the scope of civil and constitutional rights. A number of those substantive decisions — notably including cases involving gay rights, capital punishment, and prison conditions — have reached politically liberal results. But to look at those decisions and conclude that this is a moderate Supreme Court is to miss the more fundamental point that, whatever the scope of the substantive rights it is willing to recognize, the Court’s remedial decisions have made it more difficult to vindicate those rights. It is those remedial decisions, and not the Court’s rulings on substantive rights, that have made it difficult, for example, to challenge excessive uses of force by law enforcement.
It is tempting to view the line of decisions that constrict remedies as simply the work of conservative judges who do not like civil rights enforcement. But, as Staszak highlights, conservative judges have not been the only ones who have written or joined opinions placing procedural obstacles in the way of civil rights and other litigation. Liberal judges have done so as well. And lawyers and other interests with a stake in the judicial process, many of whom carry a liberal reputation, have also supported many of the developments that have limited court remedies for civil rights violations. This is an incredibly important point that prior work in the field has elided. Without accounting for that point, one cannot fully understand the politics of narrowing civil rights remedies.
In this review of Staszak’s book, I argue that, although she is surely right that the story of judicial retrenchment on civil rights remedies is one of shifting alliances and positions over time, the dominant trend over the past two decades or so has been one of conservative judges succeeding in limiting litigation. Sometimes, they were following a path cleared by liberals and progressives decades earlier, when the ideological stakes were different. Other times, they have been joined by liberals for whom removing restrictions on vigorous government action trumps rights protection — and who, at least in the context of restraints on law-enforcement conduct, simply are not as liberal as they could be. Professor Staszak’s book thus helpfully shows that judicial liberalism has changed over time. In today’s post-Ferguson world, progressives are intensely focused on checking abuses by law enforcement. But today’s liberal justices are the products of a pre-Ferguson, New Democrat politics that deemphasized criminal-justice-related civil liberties issues.