Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power

Indiana Law Journal, Vol. 78, 2003

Yale Law School, Public Law Working Paper No. 55

94 Pages Posted: 7 Jul 2003 Last revised: 10 Feb 2011

Date Written: February 7, 2011


A struggle over the norms and boundaries of federal judicial authority is ongoing, both within the United States Supreme Court and between the Court and Congress. That debate is taking place not only in the Court's high-profile constitutional docket but in ordinary cases and in work other than adjudication. The five-person majority that has become famous for its jurisprudence on the Commerce Clause, the Fourteenth Amendment, and sovereign immunity has also revised the scope of federal equitable and common law powers. The emerging legal rules stem from cases - such as Grupo Mexicano de Desarrollo, S.A., v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson - that may not come trippingly off the constitutional scholar's tongue but must be understood as working in tandem with the majority's restrictions on the power of Congress to develop new federal rights. These holdings instruct federal judges not to craft remedies without express congressional permission, and, when permission has been granted, to read it narrowly.

Moreover, through collective action unprecedented in the American experience, the Rehnquist Judiciary is attempting to convince Congress not to grant such permission. The Article III judiciary has become increasingly active in Congress before legislation is enacted - opining to Congress and the public about which litigants ought to be able to bring substantive claims to the federal courts.

Eighty years ago, Congress chartered a conference of circuit judges to meet under the leadership of the Chief Justice and - "in the interest of uniformity and expedition of business" - to "survey . . . the condition of business" of the federal courts. Thus began an entity, novel for the United States, which provided a means for judges to coordinate and collaborate. As I detail in a brief history below, during its first decades the Conference did not use its collective voice to comment on which litigants merited access to federal courts. Thereafter, the Conference occasionally advised against federal court remediation for certain kinds of cases.

A different posture has been adopted under the current Chief Justice. The Judicial Conference has proposed that Congress hold a general presumption against creating new rights if enforced through federal courts. In the mid-1990s, through its first-ever Long Range Plan, the Conference offered a vision of the appropriate allocation of power between state and federal systems and of the appropriate size and shape of the federal courts. The Conference made some ninety recommendations, including this presumption against federal remediation. The approach of the Long Range Plan is paralleled by commentary by the current Chief Justice, who has regularly used annual "state of the judiciary" addresses to criticize congressional decisions to empower particular kinds of litigants to appear in federal courts.

Examining the Rehnquist Judiciary's adjudication and advocacy together reveals a particular, and in some ways contradictory, delineation of the role for the federal judiciary: at once incompetent to help ordinary litigants who seek small-scale remediation through adjudication predicated on fact-filled records subject to appellate review, yet at the same time competent to use a collective voice to advise Congress on the shape of the rights that "the people" ought to have. These activities also illuminate the Rehnquist Judiciary's view of congressional capacities. Through constitutional adjudication, the majority has disabled Congress from certain forms of generativity and innovation. Through statutory interpretations and judicial policy prescriptions, the majority has discouraged Congress from looking to federal courts as a means of enforcing national agendas. While others have identified the majority as claiming its supremacy and assessed its political vision and its interpretative norms, here I bring into focus the effects of the Rehnquist Judiciary on the daily experiences of lower tier judges, litigants, and members of Congress. The work of both judging and governing at the national level becomes impoverished.

Keywords: judiciary, remedies

Suggested Citation

Resnik, Judith, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power (February 7, 2011). Indiana Law Journal, Vol. 78, 2003; Yale Law School, Public Law Working Paper No. 55. Available at SSRN:

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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