The limits on judicial departmentalism

In response to Steve:

I agree it presents difficult line-drawing problems. There are prudential limitations--lawmakers should not do this lightly and perhaps requires some good-faith belief that the law should or might change. Two legal doctrines impose a drag on officials. A successful § 1983 plaintiff can recover attorney's fees under § 1988--this increases the cost of defending these laws by placing government on the hook for the plaintiff's legal fees if the courts ultimately declare the law constitutionally invalid. And state officials would lose on qualified immunity in a post-enforcement damages action--SCOTUS precedent clearly establishes most rights.* Elections and the electorate provide the ultimate check--a functioning polity (and yes, we do not have that in all respects now) might punish officials for wasting public money on performative legislation that loses in court and costs the state money in damages and funding litigation costs for both sides.

I take the point that those drags apply only where actual or threatened enforcement allows offensive § 1983 litigation, whether pre- or post-enforcement. This would be more difficult with Steve's example of a state reinstating capital punishment for minors. A defendant could not sue for damages over the decision to pursue the death penalty--prosecutors would enjoy absolute immunity for the litigation decision. An offensive EpY action also may be problematic, although this is a tricky question. A minor not yet subject to a capital prosecution would lack standing; someone facing an ongoing capital prosecution could be Younger barred from going to federal court ("could" because a capital prosecution contradicting binding precedent might fit within Younger's "flagrantly unconstitutional" exception). In any event, a truly brazen example such as this would be litigated to an immediate, potentially pre-trial answer in the first case in which the state sought the death penalty against a minor (assuming case fits, as I think it would, in Cox Broadcasting's fourth finality category of seriously eroding federal policy if SCOTUS must await final judgment).

The capital-punishment example raises concerns for injuries--minors pleading out or spending time on Death Row until SCOTUS resolves (again) the constitutional issue. This warrants a few responses.

    1) Those costs exist in every period before SCOTUS decides any constitutional issue. Not to minimize, but they are inherent in the system of constitutional litigation. Minors sat on death row before Roper; I doubt they were less injured than any minors placed on death row while the state attempts to relitigate Roper. Especially were SCOTUS to overrule Roper and affirm the propriety of those sentences.

    2) They assume lower courts will ignore Roper, allow capital prosecutions of minors, and sentence minors to death. I instead would expect lower courts to apply Roper, bar the capital portion of the prosecution, and force the state to appeal to SCOTUS for new precedent.

As for where it ends, it may not not have an "end," so long as we tie constitutional decisionmaking into adversarial litigation and require some mechanism for reconsidering precedent. The alternative is that rights-increasing constitutional precedent survives forever (unless overruled by constitutional amendment).