Rights and Remedies

• Author: Marsha S. Berzon
• Position: Judge, United States Court of Appeals for the Ninth Circuit
• Pages: 519-544

Page 519

Judge, United States Court of Appeals for the Ninth Circuit. I would like to thank my law clerks, Jennifer Chang, Winter King, Ajay Krishnan, Christopher Rickerd, and Scott Shuchart, for invaluable aid in preparing this speech, and my husband Stephen Berzon for his typically excellent "last read." Janice, Michael, and David Rubin and their families were gracious hosts during our visit to Louisiana. Finally, the administration, faculty, and students of the Law Center, an attentive and inquisitive audience, helped me think through these ideas a bit more.

Coming here to participate in a lecture series named in honor of Judge Alvin and Janice Rubin is, for me, an occasion of great personal significance. In the summer of 1968, my husband Stephen and I arrived for Stephen's clerkship with Alvin Rubin, then a district judge in New Orleans. Judge and Mrs. Rubin invited us to stay with them while we went apartment hunting, and continued throughout the year to be surrogate parents, inviting us to share holiday events and other special occasions with their family. I would visit chambers occasionally and meet Judge Rubin and Stephen for lunch.

I was at the time twenty-three years old. Alvin Rubin was the first federal judge-indeed, the first judge-I had ever met. I had not yet gone to law school, nor had I any plan to do so. I certainly had no thought that I would ever follow Alvin Rubin into the federal judiciary.

But life takes strange turns, and subliminal influences often take over when one is least expecting them. I spent that year quietly observing Judge Rubin's combination of wit and wisdom; of enormous intelligence, broad knowledge, and good common sense; of hard work and preservation of time for friends and family; and of a profound commitment to both individualized justice and the development of sound, well-articulated legal doctrine. Most of all, I recognized that a man of great depth with an unwavering commitment to making the world a better place had found fulfillment in the law. By the end of the year, both Stephen and I had absorbed a vision of a life worth living, as well as a sense that personal attributes and devotion, not family connections or social status, would determine whether one attained such a life.

So I have no doubt that when, a year later, I decided to apply to law school, Judge Rubin's model informed my choice. That he was a rare lawyer, and an even rarer judge, was something I learned only over the following years.

When I was nominated to the federal judiciary, Judge Rubin had, sadly, already passed away. I remember invoking his name at the Page 520 first of my two lengthy confirmation hearings-the atmosphere surrounding judicial confirmation hearings was very different in 1998 and 1999 from what it had been in 1977, the year Judge Rubin was confirmed to the old Fifth Circuit-as the ideal to which I aspired as a judge, which indeed he was and is. While awaiting confirmation, I thought often that I would so have liked to be able to sit down with Judge Rubin if I ever reached the bench to ask him for a roadmap, a guidebook, to the role and life of a judge.

Then, when the Senate finally voted and I indeed became a judge, a box of educational materials arrived from the Federal Judicial Center to prepare me for my new endeavor. In the box was a several- years-old tape recording of a conversation among four federal court of appeals judges chosen for their wisdom and wide respect. Among those judges, thank goodness but not surprisingly, was Alvin Rubin. So I had my tutorial from Judge Rubin after all, about how to prepare for argument, how to choose and work with law clerks, and how to undertake the myriad other daily tasks that absorb judges as they try both to get through the caseload and to provide litigants with the careful attention they are due.

As I embarked on my life as a judge four years ago, I drew on the practical advice Judge Rubin imparted in that taped conversation. But I also thought often about a very specific and critically important lesson concerning the legal system that Judge Rubin taught me in his courtroom in 1969.

Before Judge Rubin that year was the school desegregation case in Tangipahoa Parish. I remember Judge Rubin looking down from the bench, drawing on his considerable ability to appear both formidable and folksy at the same time, saying to the lawyers and parents before him something like: "Brown v. Board of Education was decided in 1954. My son Michael was just starting school at the time. Michael has now gone off to college, yet in Tangipahoa Parish black and white children still are not going to school together. So a black child who was five or six when Michael was would have gone entirely through school by now, always in segregated schools. That is not how our legal system works, and I am not going to allow it to continue." And he issued an injunction to ensure that it would not,¹while the other Louisiana district judges that year faced with similar cases failed to do so-and were promptly reversed by the Fifth Circuit, while Judge Rubin was affirmed.²

The African-American children in Tangipahoa Parish had a right to attend integrated schools as soon as Brown was decided. So a Page 521 group of lawyers brought suit on their behalf under a post-Civil War statute, 42 U.S.C. 1983, that allows civil suits for "redress" against persons "who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subject[] . . . any citizen . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws . . . "³ The problem Judge Rubin wrestled with that day in 1969 and sought to resolve is that a declaration of federal rights, whether by Congress or by a court, is most often insufficient as a practical matter, as it was in the 1950s and 1960s with regard to school desegregation, to bring about the change in people's lives full recognition of those rights would entail. Without means to oblige implementation of legal rights by those who would otherwise violate them-without the "redress" that Section 1983 contemplates-the declaration by courts or legislatures of those rights remains aspirational only. Judge Rubin had no trouble so recognizing, and placed the authority of the federal courts behind an order that the African-American children had the right to attend integrated schools not as an abstract proposition but as a day-to-day, operational reality.

Judge Rubin's appointment to the federal bench by Lyndon Johnson came at a unique moment of course - during the 1960s civil rights movement-but then, as now, in his words: "[T]o succeed [in federal court] . . . plaintiffs must prove that . . . defendants have in some fashion violated federal law and that, under the tests the law directs the court to apply, they are entitled to [relief]."⁴ My aim in this lecture is to illuminate a bit of Judge Rubin's deceptively self- evident truth, by exploring the ways in which federal "rights" and "remedies," familiar concepts to judges new and old, have become focal points of contestation in the last thirty years. In those years, the federal courts have made the relationship between rights and remedies increasingly complex and contingent, with the result that courts are often faced with situations in which ascertainable rights cannot be enforced. Litigants are therefore at times not treated in accord with their recognized legal rights. Across the span of a single generation, the definitions of legally cognizable federal rights and remedies have changed considerably, indeed to an extent that makes one wonder if in today's legal landscape the "unlikely heros" of Judge Rubin's Fifth Circuit would find the legal tools that were at their disposal.⁵

These developments are my subject. My ruminations include some concern that cutting off judicial redress for violations of Page 522 recognized legal rights in pursuit of various other, independently legitimate ends has costs for which the federal courts in recent years have not fully accounted.

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To set the scene, and to emphasize the primacy that was attached to individual rights enforcement in federal courts during most of Judge Rubin's tenure, let me describe the case that became the inaugural argument of the Supreme Court's 2003 term. Frew v. Hawkins was heard on October 7 and concerned the authority of federal judges to enforce consent decrees, akin to court-supervised contracts, against state officials despite a state's claimed sovereign immunity. Sovereign immunity, for the uninitiated, is a concept of ancient origin that has, through the Supreme Court's interpretation of the Eleventh Amendment of the Constitution-in a series of five-to- four opinions countered by lengthy, contentious dissents⁶-become a major limitation on citizens' ability to enforce against state governmental entities rights conferred by federal statutes as well as by the Constitution.

Absent knowledge of Frew's recent pedigree, one would not have been surprised had it arisen in the 1960s; the district court judge, William Wayne Justice of Texas, is no stranger to cases of that decade, having also been appointed to the district court, like Judge Rubin, by President Johnson. An anecdote Judge Justice relates gives a sense of his views on rights and remedies:

Back about 1974, I was invited to the Aspen Institute for Humanistic Studies for a week-long symposium. The main participants were judges involved in institutional reform litigation. On about the fourth day, we were joined by then-Chief Justice Warren Burger, who took a seat directly across the table from me. In the course of discussing a paper prepared by Professor Abram Chayes, I advanced the proposition that, if a state has a function to perform, and does not perform that function, so that people are injured in their Constitutional rights, it is the duty of the federal courts to intervene to protect those rights. Justice...