To Make Police Accountable, End Qualified Immunity

In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.

If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.

In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.

But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.

As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.

So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.

It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.

Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.

This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.

This is the fight of our lives. Here’s how we win it.

Senators such as Donnelly, Heitkamp and Manchin need to argue to those who are ambivalent about abortion, or even against it, that right-wing judges would sanction a plutocratic government with little capacity to defend their interests.

.. “The Supreme Court, in case after case, is freely imposing its own view of sound public policy — not constitutional law, but public policy,” Biden told me at the time. “What is at issue here is a question of power, whether power will be exercised by an insulated judiciary or by the elected representatives of the people.”

..  Biden acknowledged that the phrase “judicial activism” has “often been used by conservatives to criticize liberal judges.” But “the shoe is plainly on the other foot: It is now conservative judges who are supplanting the judgment of the people’s representatives and substituting their own.”

“The existing Court’s assault on voting rights, collective bargaining and religious liberty is awful enough — just imagine how bad working people will have it if another right-wing justice joins the Court.” He warned of the court “taking a vicious, anti-worker, anti-women, anti-LGBT, anti-civil rights turn.”

.. The future of abortion rights is central to the coming battle. But so are civil rights, corporate power and our democratic capacity to correct social injustices. Conservatives should not be allowed to distract attention from the aspects of their agenda that would horrify even many who voted for Donald Trump.

Anthony Kennedy’s Imperial Legacy

In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role.

He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.

He did this without a particularly coherent constitutional theory

.. showing neither humility nor rigor in his ultimate decisions

.. overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose

.. seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.

.. Without being a completely consistent libertarian, he was a general champion of freedom

.. Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.

.. I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism

.. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.

.. what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.

.. judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice

.. unwillingness of elected representatives to act on controversial issues.

.. tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.

.. even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it.

.. Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.

.. John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy

.. he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to

let social-democratic policymaking stand (witness his vote to save Obamacare).