Remediating Resistance

Abstract

This Essay views Judge Frank M. Johnson’s institutional injunctions through a lens that I call the “political economy of constitutional adjudication.” This concept references two aspects of constitutional adjudication. First, how is constitutional adjudication shaped by institutional actors’ relative distribution of political, economic, and moral capital? And second, how does constitutional adjudication shape institutional actors’ relative distribution of political, economic, and moral capital? Judge Johnson provides an exceptional case study to explore these questions because he issued bold, innovative constitutional remedies that constrained governmental actors across multiple domains over three decades.

Judge Johnson’s strategic innovation sometimes came at the remedial stage. His remedies were characterized by deference and cooperation, as well as the enlistment and empowerment of actors beyond courts to protect constitutional norms. This Essay posits that his approach sometimes served not only to preserve his capital but also to build it in ways that lasted long after he left the Middle District of Alabama.

Keywords: political economy, judicial review, Frank Johnson, judicial restraint, federalism, civil rights, institutional injunction, institutional reform, prison reform, constitutional law, equality, federal courts