Introduction
In a time of “constitutional crisis,1 scholars are asking how federal courts can preserve a basic “imperative”2 of constitutional structure: “[A] system of constitutional remedies adequate to keep government generally within the bounds of law.”3 But that system has been in jeopardy for decades at the Court’s own hands. The Court’s case law has been marked by expansions of qualified immunity,4 refusals to allow Bivens5 claims,6 limitations on injunctive relief,7 and an overall squeamishness concerning the “costs, including to federalism and separation of powers values, of suits against the government and its officials, apart from those challenging the constitutional legitimacy of federal administrative agencies.”8
Strikingly, “[a]ll of these developments are loosely associated with modern judicial ‘conservatism’ in its substantive as well as methodological dimensions.”9 The Justices frequently divide on remedial questions along the same ideological lines that they divide on questions of substantive constitutional law and interpretive methodology.10 As Professor Richard Fallon commented, “[i]t is not obvious . . . why skepticism of constitutional remedies should be an attitude that correlates strongly with conservatism, but that appears to be the case.”11
Why is it that a general “skepticism of constitutional remedies . . . correlates strongly with conservatism”?12 Conservatives’ rights get violated, too; the rule of law and official accountability to legal norms do not solely benefit liberals.13 Yet conservative Justices recurrently vote to narrow or deny constitutional remedies,14 while liberal Justices (who elsewhere laud politically accountable institutions15) often vote in favor of empowering life-tenured Article III judges to give remedies.16 The puzzle is not that conservatives sometimes invoke judicial restraint; everybody does that. It is that remedy skepticism has become so reliably conservative — even as conservatives on the Court have simultaneously been willing to deploy judicial review aggressively to disable federal regulation and reshape rights.17
To shed light on this puzzle, this brief Essay advances a historical hypothesis: that remedy skepticism became closely associated with conservatism during the Reagan era, when the Department of Justice, led by Attorney General Edwin Meese III, articulated it as part of a broader constitutional agenda. The Meese DOJ sought to confront and oppose the constitutional jurisprudence of the Warren and Burger Courts, and one part of that endeavor was a wide-ranging critique of various judicial remedies for constitutional wrongs. Casting such remedies as constitutionally suspect, the Meese DOJ sought to redirect constitutional enforcement away from affirmative suits and toward defensive litigation and executive branch self-policing. In notable respects, the remedy skepticism of the Roberts Court was presaged in the Meese DOJ’s views.
If conservative remedy skepticism is mostly, or even partly, downstream of that decades-old association, then today’s conservative Justices should reevaluate its risks. When the executive branch is pushing the boundaries of the law in unprecedented ways,18 the Court should not operate from a bequeathed playbook for judicial power that was crafted at a very different political moment, for a very different President, and by those focused on the interests of the executive branch, not the judiciary. At least when it comes to injunctive relief against the executive branch, today’s conservative Justices should not be remedy skeptics.