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2017/060/06

II. THE REMEDIAL INFLUENCES ON JUSTICIABILITY THESIS
This Part elaborates, qualifies, and then applies the Remedial In-fluences on Justiciability Thesis. After first exploring the kinds of remedial concerns that influence the Supreme Court's decisions about justiciability, it identifies the three principal ways in which remedial concerns manifest themselves in justiciability doctrine, then refines and qualifies the statements of the Remedial Influ-ences on Justiciability Thesis that I have offered thus far. A con-cluding Section demonstrates not only the thesis's validity, but also its illuminating power, by applying it to leading justiciability doc-trines such as political question, standing, mootness, and ripeness.
A. The Types of Remedial Concerns That Influence Justiciability
The concerns or judgments about judicial remedies that help to shape justiciability doctrine divide into two general categories. First, some justiciability doctrines screen out cases presenting de-mands for remedies that the Supreme Court regards as practically or constitutionally unacceptable, typically due to their anticipated costs or intrusiveness. Second, a number of important exceptions to otherwise applicable justiciability doctrines reflect judicial judg-ments that particular remedies are necessary as a practical matter for constitutional guarantees to be enforced effectively.
To be sure, judgments of remedial necessity are obviously influ-enced by, and sometimes cannot be wholly distinguished from, merits judgments about the existence and importance of particular substantive rights. Indeed, even judgments of remedial unaccept-ability may be conditioned on a determination that the underlying right is not sufficiently important to warrant a remedy that might be acceptable if another right were at stake. These are important points, encompassed by the Equilibration Thesis, that help explain how and why courts might seek an acceptable overall equilibration of justiciability, merits, and remedial doctrines. Nevertheless, the fact remains that the considerations shaping legal judgments some-times present themselves conventionally or phenomenologically in remedial terms. Some judicial remedies would be too costly or in-trusive to count as acceptable, whereas others commend them-selves as practically necessary. What is more, justiciability doc-trines broadly, if not pervasively, reflect these concerns.

1. Anxieties about Unacceptable Remedies
Concerns that particular remedies would be constitutionally or practically unacceptable divide into two subcategories that appear on the surface to represent polar forms of excess. At one extreme, the Supreme Court disfavors, and crafts justiciability doctrines to avoid, remedies that it regards as excessively costly or intrusive. At the other extreme, the Court deems judicial remedies to be unac-ceptable if they likely would prove ineffectual. Where no effective remedy could issue, a dispute is nonjusticiable. Upon closer exami-nation, the seemingly polar anxieties turn out to be more com-plexly interrelated than appearances suggest.
a. Cost or Intrusiveness of Remedies as a Basis for Limiting Justiciability
A number of justiciability doctrines reflect anxieties that the remedies sought by plaintiffs, if granted, would prove excessively costly, intrusive, or otherwise practically or constitutionally objec-tionable. One illustration involves the political question doctrine, under which courts sometimes take the difficulty of fashioning remedies expressly into account in determining whether a dispute is justiciable.45
An even more important illustration of the relevance of reme-dial concerns to justiciability doctrines involves the Supreme Court's use of standing rules to avoid the award of remedies that would effect unacceptable intrusions on decisionmaking by execu-tive officials-a point perhaps implicit in the Supreme Court's por-trayal of its standing requirements as an effort to work out the im-plications of the constitutional separation of powers.46 An especially vivid example of this use of standing comes from City of
45See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 292 (2004); Nixon v. United States, 506 U.S. 224, 236 (1993); cf. Louis Henkin, Is There a "Political Question" Doctrine?, 85 Yale L.J. 597, 622-23 (1976) (arguing that the political question doctrine is an "un-necessary, deceptive packaging of several established doctrines" including those es-tablishing the ability of courts to "refuse some (or all) remedies for want of equity").
46See Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) ("To permit Con-gress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important consti-tutional duty, to 'take Care that the Laws be faithfully executed,' Art. II, § 3."); Allen v. Wright, 468 U.S. 737, 750-51 (1984).

Los Angeles v. Lyons.47 After being stopped for a traffic violation, Adolph Lyons was subjected to a life-threatening chokehold by Los Angeles police, allegedly as part of a policy that had caused the death of sixteen people within the previous eight years. When Lyons responded with a federal civil rights action in which he sought both damages and injunctive relief, the Supreme Court al-lowed the suit for damages, but it held that he lacked standing to sue for an injunction. According to the Court, by the time that Ly-ons filed his suit, he no longer suffered any continuing injury that equitable relief could redress, and it was "no more than specula-tion" that he faced a sufficient current threat of being choked by the police again.48 Although he could seek damages for his past in-jury, the potential threat of future harm was not sufficiently likely to warrant standing to seek an injunction.49
The Court's decision to uphold Lyons's standing to sue for dam-ages, but not for an injunction, reveals volumes. In assessing whether an injunction could issue under traditional equitable prin-ciples, the Court said expressly that "[r]ecognition of the need for a proper balance between state and federal authority counsels re-straint in the issuance of injunctions against state officers engaged in the administration of the States' criminal laws . . . ."50 It is hard not to believe that similar concerns about the peculiar intrusiveness of injunctive remedies influenced the Court's disparate rulings with respect to standing. Damages were a less intrusive and, therefore, more acceptable remedy than an injunction, and the Court's stand-ing analysis reflected this distinction.
The connection between standing and remedies that emerges from Lyons has far broader relevance. Standing issues almost never arise in suits for damages.51 By contrast, standing and other
47461 U.S. 95 (1983).
48Id. at 108-09.
49Id. at 105, 109.
50Id. at 111-12.
51Cf. Texas v. Lesage, 528 U.S. 18, 21 (1999) (per curiam) (holding that a rejected applicant challenging an affirmative action program had established "no cognizable injury warranting [damages] relief" when it was undisputed that he would not have been admitted in the absence of the program, even though an applicant would have standing to sue for injunctive relief based simply on "the inability to compete on an equal footing") (citation omitted). For discussion, see Ashutosh Bhagwat, Injury Without Harm: Texas v. Lesage and the Strange World of Article III Injuries, 28 Hastings Const. L.Q. 445, 453-54 (2001).

justiciability issues occur with relative frequency in suits for injunc-tions-the cases in which concern about the acceptability of reme-dies tends to be greatest, partly for reasons involving the courts' doubtful competence to engage in prospective regulation of com-plex institutions and partly for reasons involving federalism and the separation of powers.52 As Lyons illustrates, even when a court can decide a claim on the merits (and potentially award damages), there may be a further concern about the acceptability of injunc-tive remedies, and that concern may manifest itself in justiciability doctrine.53