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Why did the Supreme Court deny cert in the qualified immunity cases? THREAD.
The need to rein in rogue police officers is painfully obvious... and 5 justices seem on board. So why'd the Court punt? (hint: it's Mark Janus, Elena Kagan, and Justin Amash).
The need to rein in rogue police officers is painfully obvious... and 5 justices seem on board. So why'd the Court punt? (hint: it's Mark Janus, Elena Kagan, and Justin Amash).
Start with the math. To end qualified immunity, we need 4 votes to grant cert & 5 votes to join a majority op. CT + 4 liberals gets us there on both.
Yet the Court on Monday denied a slew of cert petitions that were good vehicles to accomplish exactly this. Why? I see 3 reasons.
Yet the Court on Monday denied a slew of cert petitions that were good vehicles to accomplish exactly this. Why? I see 3 reasons.
First, Mark Janus.
What, you say? The dude who led the conservative judicial charge against public sector unions?
Yup, that guy. He's back in the Supreme Court, with a cert petition the Court will discuss in conference tomorrow that all the Justices knew about.
What, you say? The dude who led the conservative judicial charge against public sector unions?
Yup, that guy. He's back in the Supreme Court, with a cert petition the Court will discuss in conference tomorrow that all the Justices knew about.
That petition asks the Court effectively to order unions to pay hundreds of millions of dollars in refunds to anti-union workers, which threatens bankruptcy for much of organized labor. So far, these refund cases have been uniformly rejected in the lower courts.
What does that have to do w/ qualified immunity? Aha. Remember that QI is a judge-made doctrine that applies to ALL gov't officers, not just police. And a closely related "good faith" defense to Section 1983 also applies to private actors like unions (or so lower cts have held).
SO. If the Court were to pare back QI for police officers, the same reasoning would apply to QI for other officers AS WELL AS the good faith defense that unions used to defeat the crippling refund suits. Undoubtedly, the 4 liberal justices had that worry in mind.
( @fredosmithjr and I have a short piece in @HarvLRev explaining how the Court could pare back QI in a legally appropriate way while recognizing a union defense based on the kind of common law tort analogies from the 19th century that Justice Thomas favors: https://harvardlawreview.org/2018/11/can-unions-be-sued-for-following-the-law/
So that explains some liberal reluctance to grant. But there's more!
Remember Elena Kagan and her love affair w/ stare decisis? (See, e.g., her ops in Allen v. Cooper, Janus, and her vote in Ramos). That position is powerfully implicated here.
Remember Elena Kagan and her love affair w/ stare decisis? (See, e.g., her ops in Allen v. Cooper, Janus, and her vote in Ramos). That position is powerfully implicated here.
Why? Well remember that Kagan views stare decisis as the strongest reason and her best shot to convince one conservative to peel off and preserve Roe v. Wade. But to do that, she can't be opportunistic. She has to follow stare decisis even when it leads to outcomes she dislikes.
QI is a perfect example. EK surely detests the idea of letting rogue officers off the hook for blatant constitutional violations based on some (wrong) judge-made defense. But that's been the law on the books for decades, and officers (rightly or not) rely on it.
What's more, the stare decisis case for QI is especially strong. QI, after all, is a (highly strained) statutory interpretation of Section 1983. And the Court routinely says that statutory stare decisis is particularly powerful b/c if the Court is wrong, Congress can just fix it.
Not so for erroneous constitutional rulings, which require judicial overruling or constitutional amendments. So Kagan can't convincingly say to the conservatives: "Stare decisis for Roe (a constitutional rule), but not for qualified immunity (a statutory one)!"
All of which takes us to @justinamash. Not him specifically, actually, but what he represents: a real bi-partisan recognition that CONGRESS should fix qualified immunity. True, we're not there yet as senate republicans drag their feet & @realDonaldTrump is, well, in office.
But we've never been closer. The #blacklivesmatter 
movement has made incredible progress for police reforms we've never thought possible. A legislative fix to QI is within reach--exactly what statutory stare decisis predicts.
movement has made incredible progress for police reforms we've never thought possible. A legislative fix to QI is within reach--exactly what statutory stare decisis predicts.
And to tie it all together, a LEGISLATIVE fix is superior to a judicial one. Paring back QI in the courts is blunt; as I noted above, it could even bankrupt public sector unions b/c the courts can't (shouldn't) make exceptions based on raw policy preferences.
But Congress can revise QI with a scalpel, eliminating or curtailing it only for police officers, for example (as the House Dem's proposal would do), while leaving similar defenses in play for other state actors and unions. Those are legislative judgments. Let's hope they happen!
