This symposium paper elaborates on two questions raised by the author’s prior work, Remedial Discretion in Constitutional Adjudication. That paper disagrees with calls for a revival of non-retroactive judicial rulings to facilitate more constitutional innovation and argued that the Supreme Court’s practice of developing doctrines that withhold remedies for constitutional violations—e.g., qualified immunity, exceptions to the exclusionary rule, and harmless-error rules— is both sufficient to facilitate constitutional innovation and preferable to reviving non-retroactivity. Of necessity, the paper also developed a theory of when courts may withhold remedies for constitutional violations and when they may not: courts may withhold remedies responsive to claims for the sub-constitutional remedies that function as substitutes for constitutional interests irretrievably lost as a result of wholly-concluded rights violations, but must provide relief when faced with justiciable, properly raised, and meritorious claims for specific relief from ongoing violations.
This follow-on paper addresses whether there is a correct way to define constitutional violations as “ongoing” or “wholly-concluded,” and whether the argument that remedies for ongoing violations are mandatory can be reconciled with cases where the Supreme Court did not provide the plaintiffs with immediate relief from systematic constitutional violations. It argues that while there is no ontological line between ongoing and wholly-concluded violations, it is reasonable to understand the doctrines mentioned above as rules that withhold substitutionary remedies for wholly-concluded constitutional wrongs, and that reasonable premises are all that is required for a descriptive theory to be persuasive. It further argues that there is a constitutionally significant difference between declaring unconstitutional a government policy or custom that is causing a claimant ongoing harm and the provision of relief designed to ameliorate the present and future effects of an invasion of rights. Only the former is constitutionally required; courts retain remedial discretion to engage in public-interest balancing with respect to the latter.
John M. Greabe, Remedial Discretion in Constitutional Adjudication: A Codicil, 9 ConLawNOW 37 (2018)