Principles, Enforcement, and SB8

Two points in response to Ilya Somin.

Two quick points regarding Ilya Somin's kind response on principles and SB8. Ilya argues that courts can't permit a state to block "meaningful federal judicial review of laws that might violate constitutional rights." To that end, courts can depart from general procedural rules—about sovereign immunity, proper parties, and so on—to the point of hearing suits against "the clerk, the janitor, the bailiff, or whatever other less-exalted official needs to be stopped to forestall SB 8 lawsuits." And he argues that there's no need to wait for legislative action, as judicial review is supposed to protect our rights when elected officials won't. (As Justice Kagan asked, "isn't the point of a right that you don't have to ask Congress?")

1. I want to be clear that I'm not accusing Ilya of being unprincipled! In his view, the "silly and artificial" distinctions barring such suits aren't really part of the law, and a more general rights-protective principle is. I see this position as perfectly coherent, albeit mistaken. My argument is addressed to those who don't see such distinctions as silly and artificial, who don't see a general rights-protective principle as trumping ordinary procedural doctrines, etc. If one accepts that fed-courts doctrines routinely (and often for good reason) get in the way of plaintiffs who want to make constitutional arguments, and if one accepts that governments routinely structure their conduct with this in mind, then one shouldn't endorse a good-for-this-train-only exception here. (Cf. Will Baude on the "too bad, so sad" principle.)

2. We should distinguish between the source of a legal right and the source of the legal means for its enforcement. For example, we all have a legal right not to be kidnapped. If we bring an ordinary tort suit against our kidnappers, or if we raise this right as a defense in any custody suit the kidnappers bring, we ought to win. That's judicial review for you. But judicial review is a hopelessly ineffective means of enforcing this right; that's why we need legislatures to create police forces to track down kidnappers and arrest them. Likewise, the Fourteenth Amendment distinguishes our constitutional rights from the "appropriate legislation" we might need to "enforce" them, such as the cause of action in 42 U.S.C. § 1983 or the criminal prohibition in 18 U.S.C. § 242—which the courts couldn't have made up on their own, despite the extraordinary chilling effects the freedmen faced. (If your response is "But they made up Bivens," see point #1 above.) Everyone agrees that laws like SB8 are already subject to judicial review, first in state court and then in the Supreme Court. If that isn't enough to protect our rights effectively, and if we need a novel cause of action to meet the novel challenge, then we might well have to look to Congress for that change, not just to the courts.