No Right Without a Remedy

The Roberts Court keeps deciding that holding government accountable costs too much, and the only durable answer is an amendment that guarantees every injured person, or their family, a day in court.

In 2010, a Border Patrol agent named Jesus Mesa Jr., standing on American soil between El Paso and Ciudad Juárez, fired across the border and killed Sergio Adrián Hernández Güereca. Sergio was fifteen. He was standing in Mexico. His parents sued, and ten years later the Supreme Court told them, by a vote of five to four, that they had no claim. Justice Ruth Bader Ginsburg, in dissent, put the choice plainly: “it is Bivens or nothing.” The majority chose nothing.

Three years after Sergio died, police in Fresno executed a search warrant on two men who ran an ATM business. The men say the officers took more than $275,000 in cash and rare coins and listed only $50,000 on the inventory. Neither man was ever charged. When they sued, the Ninth Circuit granted the officers immunity, because “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” The court never decided whether stealing during a search violates the Constitution. It decided only that no earlier court had said so in a case close enough, and the Supreme Court declined to hear the appeal.

Notice what didn’t happen in either case. No court ever looked at the facts and ruled that the government had acted lawfully. The courts ruled that they wouldn’t ask.

⁂

The idea that a right must come with a remedy is older than the Republic. When John Marshall wrote Marbury v. Madison in 1803, he reached for it as settled law. “The very essence of civil liberty,” he wrote, “certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” He quoted Blackstone: “where there is a legal right, there is also a legal remedy.” And he noted that “in Great Britain, the King himself is sued in the respectful form of a petition.” The government of the United States, Marshall went on, “has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”

The trouble is that the Constitution itself never says so. Its Bill of Rights lists what the government may not do to you and says almost nothing about what happens when it does it anyway. Everything that fills that silence was built later, by statute or by courts. Congress passed the law that lets people sue state and local officials, Section 1983, in 1871, to answer the terror of Reconstruction. The Supreme Court recognized a right to sue federal officers in Bivens in 1971. And what Congress and the Court built, the Court can narrow until it is a door painted on a wall.

That is what it has done.

---

---

The governing idea is simple enough to fit in one sentence: the expedience of enforcement exceeds the perceived cost of accountability. It runs through conservative legal thought from one doctrine to the next, and the Court has stated it in nearly those words.

The modern doctrine of qualified immunity comes from Harlow v. Fitzgerald in 1982, which predates the Roberts Court but is now its foundation. The justices explained that lawsuits against officials impose “social costs,” and they listed them: “the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” To spare officials those costs, the Court held that they could be sued only for violating “clearly established” rights “of which a reasonable person would have known.” In practice, that has come to mean a prior case with nearly identical facts, which is how a court can find that a reasonable officer wouldn’t have known that stealing is wrong.

The same ledger appears everywhere the Court looks. In Egbert v. Boule in 2022, a Border Patrol agent allegedly threw an innkeeper in Washington State to the ground on his own property and then retaliated against him for complaining, including by reporting him to the IRS. The Court held that no lawsuit could proceed, and it announced a test that leaves almost no room for the next one: a court must refuse a remedy if there is “any rational reason (even one)“ to think Congress is better suited to “weigh the costs and benefits of allowing a damages action to proceed.” Justice Sonia Sotomayor wrote that the Court’s decision “closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents.” That was the point.

The criminal courts get the same treatment. In Shinn v. Ramirez, the Court held that federal judges may not consider new evidence that a death-row prisoner’s trial lawyer was constitutionally inadequate, if his state postconviction lawyer also failed to develop it. The majority explained that federal review “imposes special costs on our federal system“ and that “serial relitigation of final convictions undermines the finality” that criminal law requires. Sotomayor’s answer was blunt: two men “whose trial attorneys did not provide even the bare minimum level of representation required by the Constitution may be executed because forces outside of their control prevented them from vindicating their constitutional right to counsel.” A year later, in Jones v. Hendrix, the Court held that a federal prisoner who argued that, under a later Supreme Court ruling, his conduct was not a crime at all could not get back into court because he had already filed one challenge before the law changed. Justice Ketanji Brown Jackson summarized the result: “legally innocent or not, Jones must just carry on in prison regardless.”

Then there is the presidency. In Trump v. United States in 2024, Chief Justice John Roberts wrote that a former president is entitled to “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” and “at least presumptive immunity from prosecution for all his official acts.” The reasoning was the same ledger at its largest scale: the cost of a president who might hesitate outweighed the cost of a president who could not be held to account. I have written before about what that immunity now buys, and about the Court’s willingness to let federal agents stop people in the street on the strength of their appearance. A year after the immunity ruling, in Trump v. CASA, the Court held that federal judges likely can’t block an unlawful policy for everyone, only for the people who sued. Sotomayor’s dissent warned that “no right is safe in the new legal regime the Court creates,” and that the holding “renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

Read those decisions together, and the pattern is hard to miss. The cost of hearing a claim is counted carefully, down to the diversion of official energy. The cost of not hearing it is never entered. Sergio Hernández’s parents are not on the ledger. Neither are the men in Fresno, or a prisoner held for conduct that may not have been a crime at all.

⁂

It would be easier to call this judicial restraint if the restraint ran in both directions. It doesn’t.

In 2023, six Republican-led states sued to stop the Biden administration’s student-loan forgiveness plan. The Court found standing by deciding that Missouri could claim the lost fees of a state-created loan servicer that had chosen not to sue. Justice Elena Kagan called the plaintiffs “classic ideological plaintiffs” who “think the plan a very bad idea, but they are no worse off because the Secretary differs,” and she wrote that by deciding the case, the Court “exercises authority it does not have.”

The doors of the federal courthouse, it turns out, open readily for a state that dislikes a policy. They stay shut for a mother whose son was shot across a border. The doctrine of standing is supposed to be a neutral rule about which disputes courts may decide. In this Court, it has become a valve that can be opened or closed depending on who is knocking. I have argued that the conservative legal movement’s interpretive commitments bend to its outcomes. Standing is where the bending is easiest to measure.

⁂

Other democracies have chosen differently. Canada’s Charter of Rights and Freedoms, adopted in 1982, says it in a single sentence. Section 24(1): “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

Canada’s arrangement isn’t universal standing, and it would be a mistake to oversell it. Section 24 belongs to the person whose rights were violated. The broader door, which lets an organization challenge a law without a directly affected plaintiff, was built by the Supreme Court of Canada and remains a matter of judicial discretion. Canadian courts also weigh the government’s interest. When the Court first allowed damages for Charter violations in Vancouver v. Ward (2010), it let the state argue that an award would interfere with “good governance.”

What matters is where the burden sits. In Canada, a person whose rights were violated starts with a constitutional claim to a remedy, and once the claimant shows that damages would serve their purpose, the government has to show why they would be wrong. The same Canadian court that recognized the government’s concern answered it directly: “Compliance with Charter standards is a foundational principle of good governance.” In the United States, the victim starts with nothing and has to find a door the courts haven’t closed. Canada treats accountability as part of good government. The Roberts Court treats it as a cost good government has to be protected from.

And the American cost argument doesn’t survive contact with the evidence. The justification for qualified immunity is that it spares officers financial ruin and spares courts frivolous suits. Joanna Schwartz at UCLA studied police misconduct payouts across dozens of agencies and found that governments paid approximately 99.98 percent of the dollars plaintiffs recovered; officers almost never paid anything, even when they were fired or prosecuted. In a second study of nearly a thousand cases in which the defense could be raised, she found that qualified immunity was the reason for dismissal in just 3.9 percent. The doctrine doesn’t protect officers’ bank accounts, which are already protected. It doesn’t screen out a flood of nuisance suits, because the flood isn’t there. What it does, reliably, is keep the hardest cases from ever being decided.

⁂

The remedy for a Court that has spent fifty years narrowing the remedy is to put it where the Court can’t reach it. That means the Constitution. But the path there should start with a statute, and the next time Democrats hold Congress and the White House, they should pass one.

Congress can restore most of what the Court has taken away. Qualified immunity is the Court’s gloss on a law Congress wrote, and Congress can strike it; the House voted to end it for police officers in 2021, by 220 to 212, before the bill died in the Senate. Congress can create the cause of action against federal officers that the Court now refuses to recognize under Bivens, which answers Egbert on its own terms, since that decision rested on deference to Congress. It can rewrite the habeas statute that Shinn and Jones construed. It can give federal courts the power to grant relief that protects everyone, since CASA turned on what Congress had authorized. And when it acts to enforce the Fourteenth Amendment, it can strip the states of the immunity they would otherwise claim, which the Court has recognized since 1976.

A statute would do two things an amendment campaign can’t. It would help people now, and an amendment takes years even when it succeeds. It would also force the Court to show its hand. The Court has dressed some of what it has done as respect for Congress, and a statute calls that bluff. What a statute can’t reach, the Court will have to strike down in its own name: presidential immunity, which the Court located in the Constitution itself, and the limits it reads into Article III on who may sue. Every such ruling becomes the argument for the amendment. And because the next Congress can repeal a statute and the next Court can construe it into nothing, the guarantee has to end up in the same document as the rights it protects.

The amendment would read something like this:

Section 1. Any person who believes that a right secured by this Constitution has been violated by an officer, employee, or agent of the United States, of any State, or of any political subdivision of either, or by any person acting under color of their authority, shall have standing to bring an action in a court of competent jurisdiction for such remedy as is appropriate and just. If that person has died or is unable to bring the action, it may be brought by a spouse, parent, child, or other next of kin, or by a legal representative.

Section 2. The remedies available under this article shall include damages, declaratory relief, and injunctive relief, which may extend to all persons subject to the challenged action. The United States, the several States, and their political subdivisions shall be liable for damages awarded against their officers, employees, and agents for acts within the scope of their duties, and shall not assert sovereign immunity in any action under this article.

Section 3. No immunity not expressly provided in this Constitution shall bar an action under this article. No person shall be immune from criminal prosecution for violating this Constitution or the laws of the United States by reason of holding or having held any public office, including the office of President.

Section 4. Any person in custody who presents evidence that he is innocent of the offense for which he is held, or that his conviction or sentence was obtained in violation of this Constitution, shall be entitled to have that evidence heard on its merits by a court of the United States at least once, notwithstanding any rule of procedural default, limitation, or prior application, unless the failure to present it earlier was his own.

Section 5. Congress shall have power to enforce this article by appropriate legislation, including reasonable rules of procedure and the summary dismissal of claims frivolous on their face, but shall not otherwise limit the rights it secures.

Each section answers a specific decision. Under the first, the Hernández family gets a door, and the door stays open for a family whose child is dead. The second ends the fiction that individual officers bear the cost, by making the government that employs them liable for what they do in its name, and it restores the power to stop an unlawful policy for everyone it touches. Section 3 sweeps away qualified immunity, the absolute immunities judges created for themselves and for prosecutors, and the criminal immunity the Court granted the presidency in 2024; the only immunities left would be the ones the Constitution actually states, such as the protection for legislative speech and debate. A person who may be innocent gets one real hearing under Section 4. And Section 5 lets Congress keep the courts working without closing the door again.

The amendment reaches every level of government on purpose. Most of the people who can violate your rights on an ordinary afternoon don’t work for Washington. They are city police officers, county jailers, school administrators, state prosecutors and the private contractors who run prisons and detention centers under government authority. Qualified immunity protects all of them. The Fresno officers were municipal employees, and the doctrine that shielded them is the same one the Court built for federal agents. An amendment that covered only the federal government would leave most of the problem exactly where it is, so this one follows the power wherever it is exercised, including by anyone acting under color of law.

The word “believes” in the first section is deliberate. Standing is only the right to be heard. The claimant would still have to prove the violation, and the government would still get to defend itself. A day in court guarantees a decision. It guarantees nothing about who wins.

⁂

The objection will be the one it always is: too many lawsuits, and government will grind to a halt. That argument is as old as the doctrine itself, and the evidence keeps refusing to cooperate. Canada has lived under a constitutional right to Charter remedies for more than forty years. Its government still functions. Its police still make arrests. And American courts already have every tool they need to dispose of frivolous claims quickly, which is precisely the power Section 5 preserves.

Underneath the worry about the courts’ calendar sits a settled preference about whose costs count. The diversion of an official’s energy is a cost. A fifteen-year-old shot dead in Ciudad Juárez is not. The finality of a state’s judgment is a cost. A man kept in prison without a hearing on whether his conduct was a crime is not. Every one of these decisions was justified as prudence, and each shifted the cost of government misconduct from the government onto the people it harmed.

In 1803, the Chief Justice of the United States could point out, as a matter of course, that even the King of England could be sued. In 2024, his successor wrote that the President of the United States is presumptively immune from prosecution for his official acts, four decades after the Court had already put him beyond civil suits over them. Somewhere in those two centuries, the country that broke from a king decided that its own officials deserved more protection than he did. It’s time to write the other answer into the Constitution.

---

Go Deeper into the Circus

---