Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional. The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing non-retroactive constitutional rulings as it recognized new criminal constitutional rights. But the Burger and Rehnquist Courts rejected non-retroactivity. Instead, they enforced forfeiture rules and significantly broadened the reach of remedy-limiting doctrines such as qualified immunity, harmless error, and exceptions to the exclusionary rule. The Roberts Court has continued in the same vein. Unfortunately, however, the Court’s shift away from non-retroactivity has been unaccompanied by any trans-substantive account of when and how courts may withhold constitutional remedies. As a consequence, influential commentators have charged the Court with inconsistency; they say that it is incoherent to discard non-retroactivity while expanding doctrines that accomplish the same thing. These commentators have called for a revival of non-retroactivity doctrine to enable more constitutional innovation. This paper argues against reviving non-retroactivity doctrine and proposes a functional framework for evaluating when and how courts may withhold constitutional remedies. The proposal differentiates between substitutionary remedies addressed to wholly concluded constitutional wrongs, which courts sometimes may withhold, and specific remedies addressed to ongoing violations, which are obligatory. The proposal rationalizes the Court’s recent remedial practices in constitutional adjudication, permits a context-specific balancing of remedial interests in cases where such a balancing is appropriate, and accounts for separation-of-powers and federalism concerns. It thus provides concrete guidance on when courts may withhold constitutional remedies and when they may not. It also respects Article III limits on judicial power — limits that non-retroactivity doctrines exceed.
