Though it’s likely to be lost in the noise surrounding the Supreme Court’s sex discrimination decision, just as important is what the Court did not do today. This morning, in the midst of the largest demonstrations against police abuse in a generation; following years of criticism from activists, the academy, and its own members; and despite having eight separate cases on its docket to choose from; the Supreme Court refused to hear a single petition asking it to revisit its qualified immunity doctrine.
Qualified immunity is a judicial doctrine that, in its present form, effectively shields government officials—including but not limited to police officers—from any personal liability for even the most egregiously unconstitutional conduct. Police officers understand that there is almost no chance they will ever be held legally accountable for misconduct. Naturally, this shapes their behavior when interacting with the public.
But try as you may, you will not find the term “qualified immunity” in our Constitution. Nor in any federal statute. It was invented out of whole cloth by the Supreme Court in the 1960s. When the Constitution was written, taking an office of public trust was seen as a somber responsibility, and the risk of getting sued for misconduct remained a vital guaranty of government accountability. Even an official’s good faith belief that they acted lawfully was not a shield against liability in the early Republic. As early as 1804, the great Chief Justice John Marshall held a U.S. Navy captain liable for the illegal seizure of a neutral ship during wartime, despite the fact that the captain was acting pursuant to orders coming directly from the president. Orders Chief Justice Marshall even agreed were more reasonable than the rule established by Congress. The captain’s good faith reliance on the legality of his orders was irrelevant—government officials must be accountable for the lawfulness of their actions. As Chief Justice Marshall explained, “the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.”
Since the 1980s, the Supreme Court hasn’t even bothered trying to defend the doctrine as anything other than a judicially-invented way for the Court to avoid the consequences of its 1960s civil rights jurisprudence, admitting that it has “completely reformulated qualified immunity along principles not at all embodied in the common law.”
The ad-hoc and unprincipled way the Supreme Court has developed qualified immunity over the years has been heavily criticized from both Left and Right as a doctrine completely unmoored from the statutory text and the common law tradition that warps the incentives of government officials by shielding them from the consequences of unconstitutional conduct. This criticism has grown much more intense and widespread in recent weeks, as protests over police brutality have rocked the nation. There is a growing awareness of the ways in which unoriginalist departures from the Constitution create bad incentives and can wreak havoc on people’s civil liberties and a bipartisan consensus that police reform is needed. There has never been a better opportunity for the Court to acknowledge its errors and overturn its qualified immunity decisions—especially considering that, since qualified immunity is a judge-made doctrine, the Court wouldn’t have to worry about allegations of judicial activism. And yet, given this rare opportunity where the principled choice is also the politically popular one, the Court punts, with not a single member joining Justice Thomas’s lonely dissent.
We are in the midst of perhaps the most important conversation about political authority the Republic has seen in a generation—and the Supreme Court is silent. Perhaps it’s waiting for Congressman Amash’s Ending Qualified Immunity Act to fix the Court’s mistake for it, though the prospects in Congress don’t look good. Maybe it’s waiting for just the right case to come along (though it’s hard to see how the facts could get any more egregious than officers escaping liability for siccing a police dog on an unarmed suspect sitting on the ground with his hands up because it was only “clearly established law” that doing so was illegal when the suspect was lying down rather than sitting). Regardless, the silence on this issue is deafening, and Chief Justice Roberts should be aware that the Supreme Court loses a little bit of its credibility every day that silence continues.
David McDonald is an attorney with Mountain States Legal Foundation