ABSTRACT
The Supreme Court has lately deployed a backward-looking and largely static approach to defining the scope of federal remedial authority. In a series of decisions on the scope of federal equity, including Grupo Mexicano and Exceptional Child, the Court has invoked an idealized (but often inaccurate) view of the origins and historic scope of equitable remedies. Coupled with its recent decisions in Ziglar v Abbasi and Hernandez v Mesa, which downplay remedial adequacy as a factor in the recognition of suits under Bivens, the Court’s turn to equity’s static past threatens to separate legal and equitable remedies that can best be understood as part of a single system.
This Essay explores the risk that a static conception of equity poses to the remedial powers of lower federal courts, powers nowhere better illustrated than in the jurisprudence of Judge Frank Johnson. Johnson granted system-wide relief to address a range of problems, including segregated schools, inadequate prisons, persistent racial discrimination in public employment, and schemes to disenfranchise minority voters. While one can readily view the growth of these remedial powers over the course of the twentieth century as the legacy of the Supreme Court’s decision in Ex parte Young, one has difficulty locating authority for the judicial oversight of public institutions in precedents drawn from equity’s distant past.
Pfander, James E and Formo, Wade, The Past and Future of Equitable Remedies (November 22, 2022), 71 Alabama Law Review 723 (2020); Northwestern Public Law Research Paper No 20-32.
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