William & Mary Bill of Rights Journal
The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity. But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies usually provided at law. The conventional account has things backwards when it comes to constitutional remedies. The modern Supreme Court frequently requires the withholding of substitutionary constitutional relief under doctrines developed to protect the perceived public interest. Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine, at least when the underlying claim is justiciable and subject to neither a judicial federalism doctrine nor statutory preclusion.
This paper details the reversal of the conventional account of remedial power and advances a two-part hypothesis that the Court’s behavior traces an appropriate constitutional boundary. The hypothesis is as follows. First, substitutionary constitutional remedies, while integral to the proper functioning of our constitutional order, are individually contingent and susceptible of legislative or judicial expansion, contraction, or replacement as the perceived public interest dictates. But second, specific relief must be available for justiciable and meritorious claims of constitutional right to which neither a judicial federalism nor a statutory diversion doctrine applies, and an effective constitutional remedy ultimately must be available even in these exceptional cases.