Lawsuits as information: prisons, courts, and a troika model of petition harms.

AuthorDoran, Marissa C.M.
PositionIV. Harm to the Courts: Interfering with the Separation of Powers through Conclusion, with footnotes, p. 1065-1088
  1. HARM TO THE COURTS: INTERFERING WITH THE SEPARATION OF POWERS

    The legislative campaigns of the mid-1990s bore traces of antebellum fights over slavery; again in the 1990s, a group bent on keeping the voices of "undesirables" from overwhelming a government institution used law and procedure to make it harder, if not impossible, for that group to bring suit. (211) But the gag-rule crisis and the PLRA did more than restrict outcomes for litigants themselves. Both affected the ability to be heard in the first place. In addition to chilling prisoner grievances and restricting public knowledge of prison conditions, the physical injury requirement thus inflicts a third level of harm to the courts as institutions.

    In the prison context, retaliation is a problem not only for the punishment it inflicts, but also for the punishments it may conceal. By blocking access to the courts, the physical injury requirement permits both retaliation and underlying violations to go unremedied. In so doing, the requirement, as applied to violations of intangible rights, interferes with the courts' ability to make real the rights that prisoners maintain. Alongside harms to plaintiffs and the public, the prior physical injury requirement thus interferes with the constitutional separation of powers, posing discrete harms to the judicial branch by insulating certain practices from judicial inquiry.

    An objection to this argument might be that, since Congress has plenary power to dictate the scope of an Article III court's subject matter jurisdiction, (212) or in the alternative, since Congress may impose restrictions on pleading or damages, the prior physical injury requirement is a permissible exercise of congressional power. But whether the prior physical injury requirement is read as a jurisdictional bar or a limitation on damages, (213) Congress may not nullify constitutional rights by eliminating remedies for their violation, and a "'serious constitutional question' ... would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." (214) To foreclose all relief, or to read the provision as a categorical jurisdictional bar, would thus pose the obvious due process and separation-of-powers problems that arise when "the laws furnish no remedy for the violation of a vested legal right." (215)

    Alternatively, what if the statute is read not to foreclose all damages, but only some? The absence of a damages remedy does not in itself violate the Constitution, as evidenced by the constitutionality of the doctrines of absolute and qualified immunity, which leave plaintiffs without damages. (216) But [section] 1997e(e) does more than limit damages. It creates arbitrary hierarchies among constitutional rights and, in the process, interferes with the separation of powers by permitting the political branches to be the arbiters of the constitutionality of their own conduct and by restricting the delivery of colorable constitutional arguments to the courts.

    Retaliation constructively denies access to the courts, and in so doing, constructively prohibits analysis of the litigant's underlying claim. (217) Because the restrictive reading of the physical injury requirement facilitates such retaliation, it requires the sort of "vigilan[ce]" necessitated when, as the Court has said, Congress--or for that matter, the Executive--"imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge." (218)

    Two cases help to illustrate. In Legal Services Corp. v. Velazquez, the Court held unconstitutional a congressional funding condition that prohibited legal services attorneys from challenging state or federal welfare statutes. (219) The Court held that the condition violated the First Amendment, and in the process, "threaten[ed] severe impairment of the judicial function" by "sift[ing] out cases presenting constitutional challenges in order to insulate the Government's laws from judicial inquiry." (220) In "seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts," the majority wrote, the condition "prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power." (221) The Court rejected the funding condition as an invalid "attempt ... to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider." (222)

    In much the same way, the physical injury predicate operates to "prohibit the analysis of certain legal issues" and "to insulate the Government's [practices] from judicial inquiry." (223) Although Velazquez dealt with courtroom speech, the analogy here is apt, as the principal holding of Velazquez was not that the content of the speech was protected, but that unrestricted argument played a functional role in ensuring that the judiciary could exercise appropriate oversight of matters within its "province" (224):

    An informed, independent judiciary presumes an informed, independent bar. Under [the statute at issue] however, cases would be presented by LSC attorneys who could not advise the courts of serious questions of statutory validity. The disability is inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case. (225) Velazquez identifies a distinct harm in depriving the courts of the information on which they rely to make decisions. Thus did the Court rely on the words of Marbury v. Madison, that "[t]hose ... who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law." (226) Like the statute in Velazquez, the physical injury requirement pushes courts to "close their eyes on the constitution" (227) and the underlying violation and see only the requirement itself, thereby creating a barrier to raising intangible constitutional claims in the absence of an arbitrary predicate. (228) In turn, the requirement restricts the argumentative avenues open to lawyers and to pro se litigants. (229) The statute's vague language and lack of clarity about prisoners' ultimate ability to recover further chills the bringing of meritorious claims. (230)

    Likewise, read in the context of Boumediene v. Bush, the restrictive reading poses problems for the separation of powers, in that it impairs the ability of the courts to exercise the power of judicial review. (231) In order to protect individual liberty, the Boumediene majority said, it was essential to preserve the power of the courts to assess the constitutionality of the government's policies: "Security subsists ... in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers." (232)

    Boumediene speaks to the duty of the judiciary to preserve its role as a forum for those desiring to challenge the fact of their confinement. But the language of Boumediene can be read to transcend habeas challenges, affirming a general "duty and authority of the Judiciary to call the jailer to account" (233) and a continuing role for the courts in checking the exercise of power by the political branches. (234) Boumediene strengthens "the notion that the denial of access raises constitutional concerns whenever it interferes with judicial resolution of viable claims," (235) as such denials compromise the ability of the courts to fulfill their constitutional role. Fulfilling such duties requires that courts hear of potential excesses, in conditions-of-confinement cases as in fact of confinement cases. (236) Thus the Boumediene Court underscored that prisoners' access to the courts "is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek." (237)

    Both Velazquez and Boumediene thus stand for the broad principles that access-to-courts violations harm not only litigants but the courts themselves, and that courts must resist efforts to restrict their ability to check governmental excess by ensuring that colorable constitutional arguments reach the judiciary. Understood in this way, the physical injury requirement poses separation-of-powers problems. By creating arbitrary and unpredictable barriers to recovery, the requirement interferes with the core functioning of the judiciary by prescribing a formalist principle with the potential to eliminate "intangible" constitutional claims, like religion, process, or speech claims. (238) Each of the branches is implicated in this process. When the political branches retaliate or facilitate retaliation, as through the physical injury requirement, they assert the prerogative to insulate certain actions from review. (239) And when the judiciary uses a formalist reading of the physical injury requirement to deny retaliation claims, it is "deferring to the Executive on the question of which suits it will hear," and thereby "entrusting to the Executive [the judiciary's] own duty to recognize violations of individual rights." (240) In this way, the physical injury requirement--and in particular the restrictive reading--interferes with the "duty and authority of the Judiciary to call the jailer to account," (241) and thus impermissibly infringes upon the structural separation of powers by enabling the political branches to be the final arbiters of the constitutionality of their own conduct.

  2. CONSTITUTIONAL IMPLICATIONS: TOWARD A THEORY OF PETITIONING DISTINCT FROM SPEECH

    In arguing that petition violations are not rightly understood as "mental or emotional," the preceding pages have sketched a portrait of petition violations not merely as injuries to individuals, but as structural...

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