The last Supreme Court Term featured a bumper crop of important decisions on standing, justiciability, and remedies. The outcomes were not monolithic. Some were sympathetic to those seeking access to judicial remedies in federal court, while others seemed to erect significant barriers—even in stark defiance of the express will of the federal government’s two other branches. The Court’s recent pronouncements also reveal sharp divides among the justices about issues at the heart of what they and the rest of the federal judiciary actually do: determine whether and when parties are entitled to judicial remedies.
Against this backdrop, Rachel Bayefsky’s article offers an especially timely and valuable contribution. Bayefsky identifies and critiques what she calls the “circumscribed” approach to the remedial authority of federal courts. At the core of this approach is a presumption that judicial remedies address solely the parties’ material circumstances. As Bayefsky shows, this vision undergirds the Court’s (or at least some justices’) attitudes on a range of issues—whether parties have Article III standing to sue in federal court, whether an offer of complete relief to a class representative can thwart a class action by mooting the representative’s individual claims, whether suits seeking only nominal damages may proceed in federal court, whether a party has “prevail[ed]” such that they are entitled to attorney fees, and whether injunctive relief for unconstitutional conduct may extend “nationwide.” For these issues, the circumscribed theory threatens to restrict or burden access to the federal courts and the power of those courts to remedy legal violations. And the circumscribed approach often acts as a matter of constitutional law—dictating the scope of Article III’s “case or controversy” requirement in a way that shuts the doors to federal courts.
Bayefsky offers a compelling alternative: an “expressive account” of judicial remedies. She argues that “a legitimate and important remedial task for federal courts is to express respect for parties’ dignity”—beyond the merely material concerns that are the focus of the circumscribed approach. These dignitary harms should be understood as constitutionally cognizable injuries that federal courts can and should remedy.
In support of this vision, Bayefsky marshals both historical and empirical support. She details, for example, the common law’s robust recognition of a party’s legal interest in respectful treatment. And she emphasizes the role that dignity and respect have played in a range of contemporary legal doctrines, such as antidiscrimination and equal protection law. Bayefsky also invokes empirical studies revealing how litigants’ dignitary concerns—the quest for respect and the need to redress disrespectful treatment—drive litigation. Vindicating these concerns increases procedural justice as litigants actually experience it and bolsters judicial legitimacy.
Bayefsky makes a convincing case that it is fundamentally mistaken to constitutionalize the circumscribed “material harm” vision into Article III’s “case or controversy” requirement. In doing so, she persuasively refutes the objection that dignitary remedies will invite federal courts to render “advisory opinions” in merely “hypothetical” disputes. That critique is premised on the circumscribed understanding of remedial authority. Once the expression of respect is recognized as an appropriate remedial task, disputes involving claims for such remedies are hardly hypothetical.
In refining her framework, Bayefsky provides sophisticated responses to some intriguing questions that her expressive approach presents. She distinguishes, for example, the “dignitary consequences of respectful and disrespectful treatment” from the psychological effects of such treatment. There is value in remedying disrespect, regardless of whether its targets suffer psychological trauma. Yet Bayefsky resists the conclusion that every legal violation necessarily causes dignitary harm, offering benchmarks to guide when expressive remedies are warranted. In addition, she highlights the importance of collective redress for dignitary harms that derive from an individual plaintiff’s membership in a broader group. This insight sheds particular light on the debate surrounding nationwide injunctions and other remedies that benefit individuals beyond the specific plaintiff bringing suit.
The Supreme Court’s jurisprudence on standing, justiciability, and remedies has long been the subject of criticism and perplexity. Bayefsky’s argument for dignitary harm as a cognizable injury and a proper subject of the federal judiciary’s remedial authority has the potential not only to correct substantive blind spots in the Court’s current doctrine, but to pave the way toward a more coherent and workable framework. It is a commendable, welcome, and well-supported proposal.
Very important. Very interesting.
The underlying problem is real and substantial in the US. However, and unfortunately so, the doctrine or solution proposed here, is unacceptable with all due respect:
Courts don’t deal with dignity. It is hardly sometimes sub issue only. This is because, dignity is very subjective. Very vague. Courts would be flooded with endless claims, endless subjective controversies, and that would hurt the efficiency of courts. Courts are anyway busy with real and concrete injuries, and the supreme court, anyway can’t deal with them all, let alone while dealing with mere social or individual dignity.
Courts should grant respect to legislator. It is up to him as starting point ( emphasizing: starting point) to dictate what is an injury, who gets respect and treatment by courts. Not the courts per se. Correct, finally it would always almost depart to very far and remote places or interpretations, yet, starting point is on the legislator. Otherwise, the subjective perception of judges, would step in, incorporated into their rulings, and finally, it would create ideological and political bias, and would erode so, the public trust in courts. This is unacceptable with all due respect.
What should be fixed on the other hand, is the understanding, that when dealing with the rule of law and public interest as a whole( emphasizing: as a whole) courts should not rely only on:
Concrete, particularized cases, bearing concrete injury. Because, there are many issues, constitutional issues, that demand solutions, even if they don’t match the current doctrine of standing. Finally, the constitution, dictates: “controversy” and the latter, can exist, without the injury of one party. For, the greater good, the public as a whole, can and should also be considered as party having standing:
Suppose, the following issue:
Whether one sitting president, can pardon himself. Great debate recently. How would it matter, whether one party bears injury and has standing:
This is a controversy. Constitutional one. The constitution doesn’t solve it explicitly. Public opinion would be in such case, very agitated and divided, and public trust and rule of law would be eroded, without solving it ( in case of) by federal courts.
Thanks
Best expressed, in the concurring opinion of Justice Gorsuch in the case of “American Legion”(see link hereby). I quote first, what is all about:
” The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing.”
Now, what he claims, is very simply and cruel, I quote:
This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear. And to establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. The injury-in-fact test requires a plaintiff to prove “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.”
And most important, why in fact, I quote:
” Imagine if a bystander disturbed by a police stop tried to sue under the Fourth Amendment. Suppose an advocacy organization whose members were distressed by a State’s decision to deny someone else a civil jury trial sought to complain under the Seventh Amendment. Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone doubt those cases would be rapidly dispatched for lack of standing?”
And further:
” It’s not hard to see why this Court has refused suits like these. If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government. Courts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms, in the process supplanting the right of the people and their elected representatives to govern themselves.”
Here to the ruling:
https://www.supremecourt.gov/opinions/18pdf/17-1717_4f14.pdf