Rights Without Remedies

Abstract

The Court should not apply the traditional standing requirements in some contexts for the same reason that, in Shelby County, it invalidated two provisions of the Voting Rights Act: the legislature cannot and will not fix the problem. No legal doctrine should be applied without examining whether elected representatives are capable of remedying specific harms and accounting for the relative unfairness in democratic governance. When the traditional standing requirements are rigidly applied without considering these factors, the Court undermines the separation of powers and prevents sound judicial decision-making. In essence, rigid application of the standing doctrine sends a message to litigants that they have “come to the wrong branch of government, even though no other branch is capable of addressing the crux of her claim.” That message should not be tolerated in a democratic society where fundamental constitutional rights provide the foundation for individual liberty and the judiciary safeguards those rights against arbitrary deprivation.The Court’s jurisprudence should implicitly acknowledge that elected representatives sometimes act in self-interested ways. The nature of democratic governance means that, elected representatives will, at least part of the time, make decisions to garner popularity with voters, increase the likelihood of reelection, and build entrenched majorities. For the same reason, elected officials may be reticent to address politically unpopular issues or vote to enact or re-authorize laws that raise serious constitutional questions. Whether through action or inaction, the result is the same, and the remedy can only come from one branch: the judiciary. Unfortunately, by applying the standing doctrine, courts can, wittingly or not, concentrate power in the legislative branch and give it the power not only to make laws, but to insulate itself from the constitutional constraints on its lawmaking power. This can result in a political process that eschews accountability and transparency, and that embraces a system of democratic governance for the privileged at the expense of the powerless. Part of the judiciary’s role is to prevent this from occurring, and to protect individual rights against dysfunction in the political process. And sometimes democracy is enhanced through undemocratic means, and if federalism is to “increase opportunit[ies] for citizen involvement in democratic processes,” citizens must know that rights are not without remedies, and that their status under the law is equal. Simply put, when the legislature cannot adequately address an issue or remedy a legal harm, the judiciary should.