“It is a settled and invariable principle,” Chief Justice Marshall once wrote, “that every right, when withheld, must have a remedy.”1 Not quite. Although some view the idea of a substantive constitutional right without a remedy as oxymoronic,2 rights to remedies have always had a precarious constitutional status, which the Supreme Court has lately subjected to multifaceted subversion. The rubric of rights to constitutional remedies encompasses diverse elements, including (1) the jurisdiction of a court to hear a claim, (2) the existence of a cause of action,3 and (3) the availability of judicial relief. But the complex interrelationships among these elements should not obscure the practical and conceptual dependence of constitutional rights on mechanisms for their enforcement.4
The recent decision in Whole Woman’s Health v. Jackson5 exemplifies the Supreme Court’s accelerating attenuation of the relationship between substantive constitutional rights and rights to remedies. Jackson arose from Texas’s attempt to defeat suits for injunctions against an antiabortion law. In a ruling that epitomizes a sea change in the law of constitutional remedies, the Court, with Justice Gorsuch writing for the majority,6 allowed Texas largely to succeed in its ambition, even as the majority assumed that the Constitution guaranteed rights of abortion access. (That assumption proved evanescent when, six months after its decision in Jackson, the Court overruled Roe v. Wade7 in Dobbs v. Jackson Women’s Health Organization.8)
Legal and even constitutional barriers to the enforcement of rights are familiar in some contexts. Sovereign immunity normally bars unconsented suits against both the federal government and the states, including for constitutional violations.9 When sovereign immunity is combined with the “official immunity” of government officers such as police and prosecutors, there are many cases in which victims of past constitutional violations receive no financial compensation.10 By contrast, in cases of ongoing constitutional violations, such as school segregation or threats to enforce unconstitutional statutes, courts, for well over one hundred years, have much more routinely issued injunctions necessary to make constitutional rights meaningful in practice.11 The Supreme Court’s decision in the Jackson case marked a break in that pattern.
The Texas Heartbeat Act,12 also known as S.B. 8, combined three elements. First, in defiance of Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey,13 S.B. 8 purported to ban abortion as soon as fetal cardiac activity could be detected.14 Second, to avoid preenforcement suits, S.B. 8 removed prosecutorial responsibility from the state’s Attorney General and other executive officials.15 Instead, it authorized private citizens to bring civil actions against anyone who performed or abetted abortions.16 Because private citizens can rarely violate the Constitution under the “state action doctrine,”17 Texas hoped to leave those who wished to procure, abet, or perform abortions with no one to sue. The strictures of standing doctrine also posed obstacles to suits against all potential private enforcers of the Heartbeat Act.18 Third, S.B. 8 subjected anyone who performed, aided, or abetted abortions to potentially draconian, multiple penalties.19
Unwilling to perform abortions prohibited by S.B. 8 without the protection of a court order, Texas abortion providers quickly sought federal injunctions against the statute’s enforcement.20 In Jackson, the Supreme Court framed the question before it as whether the challengers had adequately stated claims for relief against a private Texas citizen, the state’s Attorney General, a state judge, a court clerk, and various officials responsible for medical licensing.21 The Court’s majority ruled that the plaintiffs lacked standing to sue the private defendant and the Texas Attorney General,22 and that sovereign immunity barred suit against Texas judges and clerks,23 but it found that medical licensing officials retained a role in enforcing S.B. 8’s substantive prohibitions and were therefore suable for injunctions under a legal theory long associated with Ex parte Young.24
The ensuing headline was that the challengers had a federal right to challenge S.B. 8 via a suit against Texas “licensing officials.”25 But the Texas Supreme Court — which is the ultimate authority on the meaning of Texas law26 — subsequently held that those officials had no authority to enforce S.B. 8.27 With that ruling, the plaintiffs’ hope for an injunction dissolved. It seems doubtful, moreover, that an injunction solely against licensing officials would have emboldened Texas abortion providers to violate S.B. 8. Under doctrines of claim and issue preclusion and precedent, a lower federal court’s decision to award such an injunction would probably not have bound the private parties that S.B. 8 empowered to bring suits for damages and other civil penalties.28 The threat of private actions to enforce S.B. 8 in the Texas state courts, including ones brought after an anticipated overruling of Roe and Casey, would thus have remained.
In response to Justice Sotomayor’s dissenting protest that the Supreme Court should not permit Texas to evade suits for effectual injunctive relief against a statute that was plainly unconstitutional under Roe and Casey,29 Justice Gorsuch emphasized that the state had not wholly insulated S.B. 8 from challenge.30 Apart from the suit against licensing officials that the Court believed to be available, Justice Gorsuch noted that S.B. 8 might be challengeable in preenforcement suits for injunctions in Texas state court31 — though he did not appear to condition the Court’s upholding of S.B. 8 on that uncertain possibility.32 In any event, Justice Gorsuch wrote, any parties who were sued for violating S.B. 8 could assert their constitutional rights as defenses in the actions against them.33
The right of defendants to argue that a statute being enforced against them violates the Constitution is indeed an important, constitutionally mandated component of the relationship between substantive constitutional rights and rights to remedies. Under the Constitution’s Supremacy Clause, courts must entertain properly presented constitutional defenses.34 But reliance on that safeguard requires violating a statute and taking one’s chances that a constitutional argument will prevail. That can be a risky strategy in lots of contexts and was especially risky for the plaintiffs in Jackson because of the prospect that the Supreme Court might overrule Roe and Casey. It was to alleviate the chilling effects of threatened criminal and civil enforcement actions that the modern law of constitutional remedies had evolved to allow suits for injunctions as the norm.35
The case- and abortion-transcending significance of Jackson lies in the Supreme Court majority’s treatment of that norm. On the most plausible reading, Jackson holds that there is no right to sue for an injunction against the enforcement of a statute even when it creates, and is designed to create, a chilling effect on the exercise of constitutional rights — at least, that is, when the right holders could, in theory, assert their rights as a defense against an enforcement action. If so, Jackson possesses enormous consequence. In addition to inviting other states to replicate Texas’s strategy in efforts to chill the exercise of constitutional rights,36 Jackson pairs with the Supreme Court’s 2015 decision in Armstrong v. Exceptional Child Center, Inc.37 — which held that the Supremacy Clause does not directly create a federal right to sue to enjoin the enforcement of unconstitutional state statutes38 — to raise questions about whether parties ever have a constitutional right to equitable relief. If no constitutional mandate underlies the traditional practices of courts of equity in enjoining constitutional violations, then causes of action to sue for injunctions apparently exist only insofar as states choose to grant them as a matter of state law and Congress chooses to tolerate them as a matter of federal law.
For some parties who rely on injunctions to vindicate their substantive rights, moreover, defense against an enforcement action is not even a theoretical alternative. Consider, for example, someone who is subjected to unconstitutional prayer in a public school, or who is denied welfare benefits or fired from a job for unconstitutional reasons, or even the plaintiffs in Brown v. Board of Education,39 who experienced racial segregation. Does the Constitution guarantee none of them rights to sue for injunctions or other remedies adequate to enforce their substantive rights? At the current time, most would-be plaintiffs who believe that state officials have violated their constitutional rights have statutory rights to sue for injunctions under 42 U.S.C. § 1983.40
But what would happen if Congress took away statutory rights to sue to enjoin enforcement of unconstitutional statutes? Would there be a constitutionally mandated right to an injunction or other efficacious remedies?
Thirty years ago, I would have answered confidently that the answer to this question was yes. Closer to the present but prior to Armstrong and now Jackson, I still would have thought that the affirmative argument would likely convince a majority of the Justices. But now the argument that there is a constitutional right to effective injunctive relief against ongoing constitutional violations, even when there is no opportunity to vindicate substantive constitutional rights through a defense against an enforcement action, confronts gathering precedent-based headwinds.
In the view of some, it may be an ample response that Congress is unlikely, as a political matter, to preclude effective injunctive remedies for states’ ongoing violations of constitutional norms such as those barring segregation in public education,41 school prayer,42 or employment discrimination.43 Viewing political developments as significantly unpredictable, I am less sanguine. But whatever one’s political prognostications, Jackson provides a reminder that major gaps can exist — sometimes because legislative bodies wish to create them — between constitutional rights and the remedies that would be necessary to enforce those rights in practice. Jackson thus provides an occasion for considering broad questions both about where the law of constitutional remedies currently stands and about how it is likely to change in the near future. Although much of my analysis takes Jackson as its point of departure, this Article highlights Jackson’s connection to other recent doctrinal developments, including the Supreme Court’s decision in the same Term to make suits for damages against federal officials who violate constitutional rights nearly impossible to prosecute successfully.44 Looking back at the 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,45 which had first recognized a right of plaintiffs to sue federal officials for damages,46 the Court indicated in Egbert v. Boule47 that “if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”48
In addressing questions about the present state and likely future of the law of constitutional remedies, this Article relies on two assumptions. First, we cannot understand what substantive constitutional rights are, or what it means to have a substantive right, without attention to the extent — if any — of available and possibly constitutionally guaranteed remedies. Second, we cannot understand the current law defining the relationship between substantive constitutional rights and rights of access to courts to vindicate them without understanding the historical and constitutional background from which the current law developed and, in increasingly important respects, from which the current law now deviates.
Against the background of those premises, this Article advances a single, central argument that combines empirical and normative aspects: shaping the right-remedy relationship is a crucial lawmaking function that has historically been shared between Congress and the courts, especially the Supreme Court. Contrary to some of the Court’s critics, the relationship between rights and remedies is not conceptually determinate.49 One cannot deduce entitlements to particular remedies directly from the concept of a right without reliance on other premises and consideration of multiple contingent factors.50 At the same time, contrary to some originalist-textualist debunkers of the law of constitutional remedies as it existed prior to cases such as Armstrong and Jackson,51 nothing in the Constitution’s history or tradition mandates that the Supreme Court must leave the provision of remedies that are necessary to the effective enforcement of substantive rights entirely to Congress. Nor is Congress’s authority to grant or withhold remedies for constitutional violations, sometimes including damages and injunctions, wholly unconstrained. If we have entered an era in which a majority of the Justices believe otherwise, the situation is, in my view, a deeply regrettable one, which will cheapen what it means to have a constitutional right.52 Rights that exist in name will increasingly fall vulnerable to flouting in the absence of political commitments to enforcing them. We also risk erosion of the rule-of-law ideal that the government and its officials should be accountable for their violations of law in actions before the courts.53 Although some of my concerns and theses in this Article are familiar, my aim is to achieve a relatively panoptic perspective on historical trends and normative themes in the law of constitutional remedies, to bring criticisms of the Supreme Court’s restrictions of available remedies up to date, and to forecast likely future developments — a number of which I find alarming.
This Article unfolds as follows. Part I traces the emergence of what I call the traditional law of constitutional remedies from the Founding era through the latter part of the twentieth century. It also offers a brief normative defense, rooted in the ideal of the rule of law, of the doctrine that developed during this period. Part II identifies the beginnings of a revisionary movement in the late twentieth century, partly but not entirely driven by the Supreme Court’s increasing (but never complete) commitment to originalist and textualist interpretive methodologies. Part III examines the reasoning of the Court’s recent decision in Whole Woman’s Health v. Jackson. Part IV probes the likely implications of Jackson and other recent decisions for a number of important, looming issues concerning the relationship of substantive rights to constitutional remedies. Jackson, I suggest, is unlikely to mark the culmination of the Court’s project in making the availability of remedies for constitutional violations less a matter of constitutional right than a subject for political judgment and limitation both by state legislatures — as in Jackson — and by Congress. Part V considers and rejects the suggestion, offered by the Court in Jackson, that its recent decisions restricting constitutional remedies reflect a stance of disciplined restraint and deference to Congress under the separation of powers. The Court, Part V argues, retains and sometimes aggressively employs a variety of nondeferential levers to shape the law of constitutional remedies to its preferences. Part VI concludes with reflections on constitutional change and likely developments in the long-term future.