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Chipping at the core of justice: our law promises every litigant one bite at the apple. The Supreme Court, apparently conscious of Adam's fateful chomp, has been doing its best to keep civil rights claimants from getting theirs.

The Supreme Court has been limiting Americans' ability to seek remedies in court. In doing so, the Court has eroded important principles of the Constitution and of the common law that undergirds it.

Worse, the Court's jurisprudence has infected doctrine in the states. (1) Their own constitutions often give state courts broader jurisdiction, more robust powers, and a greater role in checking legislative power than federal courts have.

Recent Supreme Court decisions reflect a dangerous attitude: that legislative action deserves close judicial scrutiny when it expands remedies and great judicial deference when it contracts them, especially when claims against state actors are involved. These decisions are loosely tethered to constitutional text and untethered to core constitutional values. They invert the "invariable principle ... that every right, when withheld, must have a remedy, and every in jury its proper redress." (2)

Providing remedies for wrongs is a primary purpose of government. The fundamental role of the courts in fulfilling it is being decried and diminished. Bearing witness to this phenomenon is a first step in setting Supreme Court jurisprudence right.

The common law principle that there is a remedy for every wrong is rooted in the Magna Carta. (3) It is ubiquitous in American law, explicit in the texts of 38 state constitutions, (4) and implicit elsewhere. (5) This principle states a "remedial imperative" of the common law: If government does not provide redress for wrongs, society might fall apart. (6)

That is not an overstatement. We usually think of "rights" as limitations on government action. It is important to remember why we have government in the first place. In the state of nature, there was no neutral arbiter to prevent my neighbor's cattle from eating my crops, or to provide redress if they did. Getting an arbiter was of primary importance. Trespass motivated negotiation of the social contract.

While providing forgiveness for trespass is outside the scope of civil law, this nation recognized--at least since Marbury v. Madison--that providing redress is a duty of government: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." (7)

The First Amendment Petition Clause protects the right of citizens to call on the government to perform this duty. (8) It specifically protects the right to call on courts to perform the duty. A draft of the First Amendment included only a right to petition the "legislature" for redress of grievances. Later, that was broadened to include the right to petition the "government," including the courts. (9)

The Supreme Court has held that the right of access to courts is equivalent in value to the rights of freedom of expression, freedom to worship, and freedom from unreasonable searches and seizures, and that they are all "indispensable to a free government." (10) Going to court is "the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship." (11)

The scope of the right of access to the courts is broad. It includes the right to call on government to remedy disputes between private parties. (12) It should include the right to call on courts to resolve disputes between citizens and government malefactors.

Remedial imperative

The framers of the Constitution were well aware of the remedial imperative of the common law: They clearly intended that the judiciary would protect citizens from bad actions by the other branches. (13)

That they revised the First Amendment to assure citizens' access to courts strongly suggests that they in tended the courts to provide remedies for citizens injured by governmental action.

Despite the understanding of the framers, the Supreme Court under Chief Justice William Rehnquist has made it more and more difficult for plaintiffs asserting claims against the government actors to open the door to the courthouse.

The judiciary is abandoning the remedial imperative in civil rights law. A civil-rights litigant can call an offending state actor into court primarily in three ways: when a statute specifically allows it; when a statute impliedly allows it; and under 42 U.S.C. 1983 [section], when the actor deprives the litigant of a right that is secured by federal law.

The Supreme Court has curtailed the first category, in an extraordinary set of decisions, by finding that Congress was not authorized to take the given actions. It made up the need for the second category, then proceeded to painfully narrow the circumstances in which a remedial right would be found. It has narrowed the scope of 1983 [section] by limiting who is covered and what are considered enforceable rights, and by creating immunity doctrines that are anathema to the remedial imperative of the common law.

Where there is a wrong, there isn't necessarily a remedy. In the early 1970s, the Supreme Court began to find that not all federal wrongs led to federal remedies. In Cort v. Ash, it engaged in an unremarkable analysis, consistent with common law, concluding that no civil remedy would lie for violation of a particular federal criminal statute. (14) Quickly, however, in Cannon v. University of Chicago, the Court expanded that analysis to civil statures: "As our recent cases--particularly Cort v. Ash--demonstrate, the fact that a federal stature has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." (15)

This statement was a retreat from the recognition of the remedial imperative in J.I. Case Co. v. Borak, which found an implied right of action under the Securities Exchange Act of 1934. (16) Before Cannon was decided, Justice John Marshall Harlan had described Borak as "an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action." (17)

In Cannon, the Court found an implied right to enforce Title IX, but the opinion's language began to invert the remedial imperative, as then-Justice Rehnquist suggested in his concurrence. (18) The Court has subsequently followed the Rehnquist doctrine, ignoring the remedial imperative when considering whether a private right of action should be implied. (19) In the words of Justice Antonin Scalia, the Court bas "abandoned the expansive rights-creating approach." (20)

Only some wrongs are really wrong. The remedial imperative suffered mightily in Alexander v. Sandoval, which held that some wrongs are not really wrongs, or that at least they do not lead to remedies. (21)

In Lau v. Nichols, the Supreme Court, echoing the realistic jurisprudence of Brown v. Board of Education, found that it was both wrong and actionable for a school system to ignore the fact that some students do not speak English. (22) After Sandoval, the practice was no less wrong, but--unless the almost-unbearable burden of proving intentional discrimination could be borne--it was no longer actionable.

Sandoval involved a claim that Alabama discriminated against non-English speakers by refusing to permit them to take driving examinations in any other language. Title VI of the Civil Rights Act of 1964 prohibits intentional discrimination on the basis of national origin, and regulations implementing it prohibit actions that have a disparate impact on protected minorities. The Sandoval Court found that there is no private right of action to enforce the regulations. (23) The Court acknowledged that real people suffered real harm, but left them powerless to call on courts for remedies.

The Supreme Court normally takes the view that Congress intends its enactments to be construed in light of the prevailing law at the time the statutes are passed. (24) Congress enacted Title VI with the intention of eradicating discrimination. In 1964, the remedial imperative prevailed

on the Supreme Court. The Court recognized then that, when interpreting statutes, courts should "provide such remedies as are necessary to make effective the congressional purpose." (25) The Sandoval court abandoned this principle.

After Sandoval, good lawyers have relied more heavily on 1983 [section], with some success, for remedies to violations of Title VI and similar statures. The courts have followed a three-step test distilled from three Supreme Court cases--Blessing v. Freestone, (26) Wilder v. Virginia Hospital Association, (27) and Wright v. City of Roanoke Redevelopment & Housing Authority (28)--to determine whether a federal law is enforceable under 1983 [section].

Subsequently, however, Gonzaga University v. Doe marked a further retreat from the remedial imperative. (29) In Gonzaga, the Court turned its sights on the enforceability, under 1983 [section], of Spending Clause enactments like the ones involved in Blessing, Wilder, and Wright.

The Gonzaga Court held that one provision of the Family Educational Rights Privacy Act (FERPA) does not create a right enforceable under 1983 [section]. While alluding with favor to Blessing and Wilder, the Court reasoned that FERPA contained no evidence that Congress intended it to be enforced through a private right of action. The Court emphasized that being a beneficiary of a statute's effects did not lead to enforceability. Instead, enforceability hinges on showing "an unambiguously conferred right." (30)

Critical elements of the New Deal and Great Society programs were spending power enactments, passed at a time when Congress, aware of the remedial imperative, believed the enactments would create enforceable remedies. Ignoring this, some lower court judges are citing Gonzaga to hold that individuals cannot enforce a range of New Deal and Great Society spending power enactments, including protections Congress set forth in housing, (31) Medicaid, (32) and adoption-assistance provisions. (33)

Even some things Congress meant to be wrongs are not wrongs. Not only has the Supreme Court shunned the remedial imperative when analyzing the implicit meanings of statutes, it also has shunned the imperative in recent decisions negating explicit congressional intent to provide remedies.

The Eleventh Amendment is itself a constitutional restriction on the remedial imperative. It insulates states from federal court suits brought by "citizens of another state." Rather than follow the common rule of construction that enactments--even constitutional ones--that abrogate common law rights are to be read narrowly, the current Court bas broadened the amendment to cripple Congress's power to create remedies.

In Seminole Tribe of Florida v. Florida, the Court, reversing a decision made just seven years earlier, announced that Congress had no power under the Commerce Clause to abrogate state sovereign immunity in federal court suits. (34) Seminole Tribe destroyed remedies that Congress knowingly created under numerous Commerce Clause enactments.

The Court continued its Sherman's March with Alden v. Maine, finding that Congress could not use its Commerce Clause power to abrogate state sovereign immunity in state courts. (35) Lacking a basis for its decision in the words of the Constitution, the Court stretched its preemptive doctrine further, saying that the "sovereign immunity of the states neither derives from, nor is limited by, the terms of the Eleventh Amendment." (36)

Although the High Court has been roundly criticized for its activism, (37) a five-member majority is unmoved. Not content with having limited Commerce Clause authority to create remedies, the Court narrowed the scope of congressional remedial power under 5 [section] of the Fourteenth Amendment, a power given Congress only after more than a half million Americans died in the Civil War.

In United States v. Morrison, the Court found the Violence Against Women Act to be outside the scope of congressional power under either the Commerce Clause or the Fourteenth Amendment. (38) It extended this doctrine in Kimel v. Florida Board of Regents (39)--which insulates states from individual damages suits in federal court when they violate the Age Discrimination in Employment Act--and Board of Trustees of University of Alabama v. Garrett (40)--which does the same for Title I of the Americans with Disabilities Act.

This tendency to impose sharp limits on congressional power when Congress creates remedies stands in stark contrast to the posture of the Court when construing the intent of Congress to preempt existing state remedies. There, preemption has been found even in the face of an explicit congressional intent to preserve such remedies. (41)

The broader context

The Supreme Court's curtailment of the remedies available to civil rights plaintiffs is only part of a general tendency to curtail ordinary citizens' right to hold malefactors responsible for their misdeeds. Funding for both federal and state courts is shrinking. People are waiting longer for trial dates. Fewer and fewer cases are tried to juries. (42)

The immediate loss to plaintiffs is obvious. More subtle is the loss to society. Malefactors, insulated from being judged by a jury of their peers, are not restrained from acting badly. Benchmarks of the monetary value of wrongs, which are set by juries, are not established. And the power--granted to the least American citizen--to hold the powerful accountable in a court of law is diminished.

This loss is most disturbing. The Bush administration says we are fighting a war in part to vest that power in the citizens of Iraq. At the same time, the administration advocates further diminution of that power in U.S. citizens.

Despite a trend toward its trivialization, the value of one bite of the apple has not diminished since the Book of Genesis was written. The right to a remedy--and the right to seek it from an independent adjudicator--are not afterthoughts of American constitutional law. They are at the core of any social order that can call itself civil.


(1.) See, e.g., Katzberg v. Regents of Univ. of Cal., 127 Cal. Rptr. 2d 482, 486-95 (2002) (rejecting an implied private right of action to sue in damages for a violation of the due process clause of the California constitution); DeGrassi v. Cook, 127 Cal. Rptr. 2d 508 (2002) (the same, regarding damages action for violation of plaintiff's right to free speech under the state constitution). In cruel irony, these cases use post-Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics doctrine to reject a straightforward application of Bivens to state constitutional claims. (403 U.S. 388 (1971).)


(3.) See A.E. DICK HOWARD & A. DICK HOWARD, MAGNA CARTA: TEXT AND COMMENTARY 12-18 (rev. pap. ed. 1997).

(4.) David Schuman, The Right to a Remedy, 65 TEMP. L. REV. 1197, 1201 (1992).

(5.) The framers did not need to include this maxim explicitly in the Constitution; it was anathema to them that federal courts would adjudicate any substantial number of common law disputes. See THE FEDERALIST NO. 78 (Alexander Hamilton). The framers clearly expected that the federal courts would use the established methods of the common law to adjudicate disputes in cases that did come before them. See, e.g., Feltner v. Colum. Pictures Television, Inc., 523 U.S. 340 (1998).

(6.) See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1426 (1987).

(7.) Marbury v. Madison, 5 U.S. (1 Cranch) 137,163 (1803).

(8.) Norman B. Smith, "Shall Make No Law Abridging ...": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153 (1986).

(9.) Julie M. Spanbauer. The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15, 39-40 (1993).

(10). Downes v. Bidwell, 182 U.S. 244, 282-83 (1901).

(11.) Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (19117).

(12.) Bill Johnson's Rests., Inc, v. NLRB, 461 U.S. 731 (1983); Mo. Pac. Ry. Co. v. Humes, 115 U.S. 512, 521 (1885).

(13.) See THE FEDERALIST, supra note 5.

(14.) 422 U.S. 66 (1975).

(15.) 441 U.S. 677, 688 (1979).

(16.) 377 U.S. 426, 433 (1964).

(17.) Bivens, 403 U.S. 388, 402 n.4 (Harlan, J., concurring).

(18.) 441 U.S. 677, 717-18 (Rehnquist, J., concurring).

(19.) See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-69 (2001).

(20.) Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 77 (1992) (Scalia, J., concurring).

(21.) 532 U.S. 275 (2001).

(22.) 414 U.S. 563 (1974).

(23.) 532 U.S. 275.

(24.) See, e.g., Lorillard v. Pons, 434 U.S. 575, 580 (1978).

(25.) J.I. Case Co., 377 U.S. 426, 433.

(26.) 520 U.S. 329 (1997).

(27.) 496 U.S. 498 (1990).

(28.) 479 U.S. 418 (1987).

(29.) 536 U.S. 273, 283 (2002).

(30.) Id.

(31.) Asylum Hill Problem Solving Revitalization Ass'n v. King, No. (X02)CV030179515S, 2004 WL 113560 (Conn. Super. Ct. Jan. 5, 2004).

(32.) Sabree ex rel. Sabree v. Houston, 245 F. Supp. 2d 653 (E.D. Pa.), appeal pending sub nom., Sabree v. Rich man, No. 03-1226 (3d Cir. filed Jan. 29, 2003).

(33.) 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cit.), cert. denied, 124 S. Ct. 483 (2003).

(34.) 517 U.S. 44, 66 (1996), overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).

(35.) 527 U.S. 706 (1999).

(36.) Id. at 713.

(37.) See, e.g., Erwin Chemerinsky, Against Sovereign Immunity, 53 STAN. L. REV. 1201 (2001).

(38.) 529 U.S. 598 (2000).

(39.) 528 U.S. 62 (2000).

(40.) 531 U.S. 356 (2001).

(41.) Geier v. Am. Honda Motor Go., 529 U.S. 861 (2000).

(42.) See William G. Young, An Open Letter to U.S. District Judges, 50 FED. LAW. 30 (2003).

JOHN VAIL is senior counsel for the Center for Constitutional Litigation in Washington, D.C. JANE PERKINS is director of legal affairs at the National Health Law Program's office in Chapel Hill, North Carolina.
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