The real problem with Thursday's argument in the Trump immunity case is the extent to which it reveals a Supreme Court poised to paint itself into a deeply problematic (and unnecessary) corner
Qualified Immunity should already be a flashing warning sign of what not to do. The SC, Congress and State Legislatures should not be making sweeping pre-immunity judgements to begin with. It does real harms to legislate based on an exception to the norm - exceptions are infrequent and cannot be defined in advance - they should be adjudicated on a case by case basis, I don’t care how “inefficient” it is for Court caseloads.
If anything, this is even more so here, where we're talking about a rule for 45 people across history as opposed to tens of thousands of government officers today.
But the QI cases are also a great example of the harms of NOT articulating a general rule. So much awful conduct gets excused bc the appeals courts don't articulate a rule that tells future actors what they can't do so they all get QI.
That is because the steps and requirements to overcome QI rule are almost insurmountable, not just that courts are paralyzed. The state should have no immunity for its actions - in a liberal democracy such as ours, allowing the state or state actors to act with impunity is more of a risk than having to handle litigation. The presumption of innocence is still for the state since they are the defendant - we don’t need to throw additional obstacles in the way of plaintiffs. It’s exactly backwards.
Judges already have the power to throw out frivolous suits at the first instance and there are additional pre-trial hurdles that have to be surpassed in all cases.
The Constitution allows for civil and criminal liability as redress except in very strictly defined instances. Do you think the authors of that document — with their primary concern being the accretion of power such that it undermines liberal democracy — would agree with preemptive immunity? I think not.
Qualified immunity isn't a constitutional doctrine. It's an interpretation of section 1983. Congress could decide to eliminate it tomorrow and frankly should [1]. I don't necessarily like the original case granting QI but the fact that congress has repeatedly failed to pass any law revoking it does give the suggestion that they didn't intend for 1983 to include such liability at least some plausibility.
But, given that QI is precedent the failure of circuit courts to actually decide constitutional rules has multiplied that harm humongously. The worst is when they merely decide that the official has QI without deciding if it was unconstitutional so the next guy can still use it but if they'd just announce broader rules it wouldn't be quite so bad.
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1: I'd still allow an affirmative defense in the case of unforseeable new judicial doctrines so you can't win a suit because a cop didn't read Miranda rights before Miranda. But I'd require that the official to make a relatively high showing that they had good reason to affirmatively believe based on existing precedent (or lack of anything even sorta similar) that said action would be held to violate the constitution.
Layman here (if it wasn’t obvious 😂). QI has to do with immunity from “good faith” violation of legal and constitutional rights by state actors (can’t get much murkier than that). That’s what I meant.
Strongly with your second paragraph and your footnote! Congress won’t fix it in the current environment, alas.
I have a strong suspicion we are not disagreeing but that I have not communicated very well.
A very good synopsis of the issues surrounding the SCOTUS regarding Trump and/or any President past, current or future! My opinion of total immunity is that, if granted, would be equivalent of establishing a dictatorship! On “good faith” I try to give the justices the benefit of doubt, but in this case one or more of the justices have been heavily influenced by GOP doctrine and aren’t being objective. Judge Thomas shouldn’t even be sitting on this case with his wife allegedly being a participant in Jan. 6 activities and in the fake electors scheme. Chief Justice Roberts needs to take the bull by the horns and reel the other conservative judges back into reality. Last point is, if the justices think the lower court didn’t “research “ the case enough, why did they agree to hear it in the first place? Thanks for this post sincerely!
Why isn’t the correct response to all this pearl clutching by the SCOTUS right wingers, “If there is a need to craft certain immunities for a president to adequately perform the role of chief executive, the Congress should be the branch that legislates it, not the Court”?
Insofar as *any* immunity here comes from the Constitution (which is what the Court held w/r/t civil damages in Nixon v. Fitzgerald), I buy the argument that the Court can act without Congress. The problem is that, without such a tether, there's that much more of an incentive for the Court to go off in ... problematic ... directions.
Fine, but can we finally put textualism and originalism to bed then as credible interpretive models? Because they can’t where the right wing wants to go.
The thing about all this is that it has *never* been an issue in 250 years of American history. The Republic has done just fine all this time and no past Presidents butted up against this made-up issue (except maybe Nixon). This is one bad apple in Trump. It seems like the Court must be even handed and neutral rather than buy into plainly idiotic arguments. They know better. They know what Trump is trying to do. They also know this has never been an issue in 250 years. Presidents have been able to perform just fine for the last couple centuries. Trump made all of this up to cheat his way out of accountability, like he has cheated since he was a kid! I hope this Court does not make the egregious error. The question also is can a future Court reverse an error made by this Court?
Even if we accept that the Constitution gives the Court the power to craft some immunity rule, that begs the question of whether the Court should act without Congress. The extent of Presidential immunity is a prudential matter, and prudential questions are best left to the political branches. Certainly, the Republican Congress could at least try to statutorily immunize Trump, and if a rule for the ages, instead of a rule for one man, is really needed, then such a rule could conceivably come out of the political process. The Court is whimsical, at best, in deciding where it needs to stick its collective nose. And that whimsy leads to perceptions of bad faith, even if unjustified, that should give it pause.
This is as insightful as your usual high standard, but there is a mistake in the first paragraph of On The Docket. The abortion case was EMTALA and not the pill case.
Why would "five or more justices (potentially including Justice Roberts who previously sought to limit the Court's actions) think "they have an obligation to do more than is required in the instant case"? The answer, I believe, is Hubris. These jurists, (three of whom were appointed through mischievous means) believe they were anointed to the Court, not to interpret but to recast the Constitution in accord with their (and their sponsors') illiberal beliefs.
“[I]t’s possible to imagine that some of the questions from the more right-leaning justices on Thursday were as much worried about the specter of a future President Trump pursuing bogus charges against (former) President Biden as they were concerned about the other way around.”
I’m afraid you have a much more powerful imagination than I do! Seems like the justices’ preference for hypotheticals and rules “for the ages” over the actual facts of what their guy did reflects an unwillingness to actually grapple with the latter. They have to actually recognize the threat posed by Trump in order to be concerned about it, don’t they? I’m not seeing much evidence of that.
Your insightful analysis prompts the question, why on earth is Trump’s prosecution on hold? For an exercise in inventing constitutional law for the ages? Surely that can wait; his trial cannot.
Justice ACB asked Trump rep Sauer about several aspects of the indictment, whether they were "official acts" for which immunity was a possibility, and his answers (acknowledgments) were no, no, and probably not. But there was *no discussion* in nearly 3 hrs of what the applicable standard was for that categorization, and no one even *asked* about how the *other* charged acts should be categorized. (I remain of the opinion that the defendant's *most* treasonous act was his *refusal* to act for several hours to send in the Guard to quell the violent insurrection at the Capitol that he had encouraged and anticipated over the preceding several weeks and triggered that morning. Assuming there can be some immunity for "official acts," does that include *refusal to perform* such acts out of opposition to Constitutional processes?) If that question remains unanswered, but a majority holds that there *is* post-term criminal immunity for at least some "official acts," won't there have to be more proceedings before DistJ Chutkan, and appeals of her rulings, on the closer calls than the four (?) that ACB asked about?
PS: Did no one else notice that "a rule for the ages" is a surpassingly hubristic notion for a justice (and a Court) that has shown remarkable willingness to overrule precedents that had been thought settled for "ages"?
I think your point about the concern with a future president prosecuting a political opponent is spot on -- but that's exactly what makes it important that the court issue a broader rule in this case.
First, when that potential prosecution does occur the court's job will be harder than it is now. For all I approve of charity, I fear that in a potential prosecution of a democratic president some justices might suddenly find it harder to reach a ruling ending the prosecution and the political fervor will only make the decision harder (lots of fervor now but less about the parts that don't apply to Trump). Worse, whoever is doing the prosecuting will feel the deciscion is hypocritical after allowing Trump to be prosecuted -- possibly to the extent of creating a constitutional crisis
Also, there is the issue that even if any conviction is ultimately overturned merely allowing that kind of political prosecution to go on could have hugely harmful effects. Especially if the court was to decide this case in a way that didn't create a right to immunity from trial only conviction (eg no pre-comviction appeal based on immunity).
So I agree that sometimes it's better not to issue a broad rule but I'm not convinced this is one of those times.
What gets my bp up is the now Imperial Court majority's delusions of grandeur. Judicial restraint is as seemingly foreign to it as stare decisis is a quaint doctrine.
How about SCOTUS just AFQ? Brown Jackson essentially made this suggestion. There is no reason for a decision for the ages.
Like when the Justices ruled on pornography: I can’t give an exact definition, but I will know it when I see it. The Justices know it when they see it. They just don’t want to say it.
Make it four people who care a lot about having the official reporter citations! I'm a state district court level career law clerk who absolutely hates massive string cites involving ___ U.S. ___ with S.Ct. and L.Ed cites all bound up in there. I never understood why this took so long to just get a citation!
Qualified Immunity should already be a flashing warning sign of what not to do. The SC, Congress and State Legislatures should not be making sweeping pre-immunity judgements to begin with. It does real harms to legislate based on an exception to the norm - exceptions are infrequent and cannot be defined in advance - they should be adjudicated on a case by case basis, I don’t care how “inefficient” it is for Court caseloads.
If anything, this is even more so here, where we're talking about a rule for 45 people across history as opposed to tens of thousands of government officers today.
But the QI cases are also a great example of the harms of NOT articulating a general rule. So much awful conduct gets excused bc the appeals courts don't articulate a rule that tells future actors what they can't do so they all get QI.
That is because the steps and requirements to overcome QI rule are almost insurmountable, not just that courts are paralyzed. The state should have no immunity for its actions - in a liberal democracy such as ours, allowing the state or state actors to act with impunity is more of a risk than having to handle litigation. The presumption of innocence is still for the state since they are the defendant - we don’t need to throw additional obstacles in the way of plaintiffs. It’s exactly backwards.
Judges already have the power to throw out frivolous suits at the first instance and there are additional pre-trial hurdles that have to be surpassed in all cases.
The Constitution allows for civil and criminal liability as redress except in very strictly defined instances. Do you think the authors of that document — with their primary concern being the accretion of power such that it undermines liberal democracy — would agree with preemptive immunity? I think not.
Qualified immunity isn't a constitutional doctrine. It's an interpretation of section 1983. Congress could decide to eliminate it tomorrow and frankly should [1]. I don't necessarily like the original case granting QI but the fact that congress has repeatedly failed to pass any law revoking it does give the suggestion that they didn't intend for 1983 to include such liability at least some plausibility.
But, given that QI is precedent the failure of circuit courts to actually decide constitutional rules has multiplied that harm humongously. The worst is when they merely decide that the official has QI without deciding if it was unconstitutional so the next guy can still use it but if they'd just announce broader rules it wouldn't be quite so bad.
--
1: I'd still allow an affirmative defense in the case of unforseeable new judicial doctrines so you can't win a suit because a cop didn't read Miranda rights before Miranda. But I'd require that the official to make a relatively high showing that they had good reason to affirmatively believe based on existing precedent (or lack of anything even sorta similar) that said action would be held to violate the constitution.
Layman here (if it wasn’t obvious 😂). QI has to do with immunity from “good faith” violation of legal and constitutional rights by state actors (can’t get much murkier than that). That’s what I meant.
Strongly with your second paragraph and your footnote! Congress won’t fix it in the current environment, alas.
I have a strong suspicion we are not disagreeing but that I have not communicated very well.
A very good synopsis of the issues surrounding the SCOTUS regarding Trump and/or any President past, current or future! My opinion of total immunity is that, if granted, would be equivalent of establishing a dictatorship! On “good faith” I try to give the justices the benefit of doubt, but in this case one or more of the justices have been heavily influenced by GOP doctrine and aren’t being objective. Judge Thomas shouldn’t even be sitting on this case with his wife allegedly being a participant in Jan. 6 activities and in the fake electors scheme. Chief Justice Roberts needs to take the bull by the horns and reel the other conservative judges back into reality. Last point is, if the justices think the lower court didn’t “research “ the case enough, why did they agree to hear it in the first place? Thanks for this post sincerely!
Why isn’t the correct response to all this pearl clutching by the SCOTUS right wingers, “If there is a need to craft certain immunities for a president to adequately perform the role of chief executive, the Congress should be the branch that legislates it, not the Court”?
Insofar as *any* immunity here comes from the Constitution (which is what the Court held w/r/t civil damages in Nixon v. Fitzgerald), I buy the argument that the Court can act without Congress. The problem is that, without such a tether, there's that much more of an incentive for the Court to go off in ... problematic ... directions.
Fine, but can we finally put textualism and originalism to bed then as credible interpretive models? Because they can’t where the right wing wants to go.
The thing about all this is that it has *never* been an issue in 250 years of American history. The Republic has done just fine all this time and no past Presidents butted up against this made-up issue (except maybe Nixon). This is one bad apple in Trump. It seems like the Court must be even handed and neutral rather than buy into plainly idiotic arguments. They know better. They know what Trump is trying to do. They also know this has never been an issue in 250 years. Presidents have been able to perform just fine for the last couple centuries. Trump made all of this up to cheat his way out of accountability, like he has cheated since he was a kid! I hope this Court does not make the egregious error. The question also is can a future Court reverse an error made by this Court?
Perhaps the real issue here is that Nixon v Fitzgerald didn't draw its lines particularly well, but nobody is incentivized to make that argument.
Even if we accept that the Constitution gives the Court the power to craft some immunity rule, that begs the question of whether the Court should act without Congress. The extent of Presidential immunity is a prudential matter, and prudential questions are best left to the political branches. Certainly, the Republican Congress could at least try to statutorily immunize Trump, and if a rule for the ages, instead of a rule for one man, is really needed, then such a rule could conceivably come out of the political process. The Court is whimsical, at best, in deciding where it needs to stick its collective nose. And that whimsy leads to perceptions of bad faith, even if unjustified, that should give it pause.
I don’t believe it’s unjustified. Thomas’ participation alone warrants a belief in bad faith.
This is as insightful as your usual high standard, but there is a mistake in the first paragraph of On The Docket. The abortion case was EMTALA and not the pill case.
Indeed. It probably says something that I couldn't keep those two straight.
The permanent version has been updated to correct this, thanks!
Steve I think there's an error in your "On the Docket" paragraph where you refer to the mifepristone case." I think you mean the Idaho EMTALA case(?)
Indeed. It probably says something that I couldn't keep those two straight.
The permanent version has been updated to correct this, thanks!
Why would "five or more justices (potentially including Justice Roberts who previously sought to limit the Court's actions) think "they have an obligation to do more than is required in the instant case"? The answer, I believe, is Hubris. These jurists, (three of whom were appointed through mischievous means) believe they were anointed to the Court, not to interpret but to recast the Constitution in accord with their (and their sponsors') illiberal beliefs.
“[I]t’s possible to imagine that some of the questions from the more right-leaning justices on Thursday were as much worried about the specter of a future President Trump pursuing bogus charges against (former) President Biden as they were concerned about the other way around.”
I’m afraid you have a much more powerful imagination than I do! Seems like the justices’ preference for hypotheticals and rules “for the ages” over the actual facts of what their guy did reflects an unwillingness to actually grapple with the latter. They have to actually recognize the threat posed by Trump in order to be concerned about it, don’t they? I’m not seeing much evidence of that.
When a judge says, "I'm not interested in the facts of this case," it's a red flag that the judge is overstepping the bounds of a court's authority.
Cool on the official citation rule.
Your insightful analysis prompts the question, why on earth is Trump’s prosecution on hold? For an exercise in inventing constitutional law for the ages? Surely that can wait; his trial cannot.
… where Thomas is in the majority.
PS where’s the edit button?
Justice ACB asked Trump rep Sauer about several aspects of the indictment, whether they were "official acts" for which immunity was a possibility, and his answers (acknowledgments) were no, no, and probably not. But there was *no discussion* in nearly 3 hrs of what the applicable standard was for that categorization, and no one even *asked* about how the *other* charged acts should be categorized. (I remain of the opinion that the defendant's *most* treasonous act was his *refusal* to act for several hours to send in the Guard to quell the violent insurrection at the Capitol that he had encouraged and anticipated over the preceding several weeks and triggered that morning. Assuming there can be some immunity for "official acts," does that include *refusal to perform* such acts out of opposition to Constitutional processes?) If that question remains unanswered, but a majority holds that there *is* post-term criminal immunity for at least some "official acts," won't there have to be more proceedings before DistJ Chutkan, and appeals of her rulings, on the closer calls than the four (?) that ACB asked about?
PS: Did no one else notice that "a rule for the ages" is a surpassingly hubristic notion for a justice (and a Court) that has shown remarkable willingness to overrule precedents that had been thought settled for "ages"?
I think your point about the concern with a future president prosecuting a political opponent is spot on -- but that's exactly what makes it important that the court issue a broader rule in this case.
First, when that potential prosecution does occur the court's job will be harder than it is now. For all I approve of charity, I fear that in a potential prosecution of a democratic president some justices might suddenly find it harder to reach a ruling ending the prosecution and the political fervor will only make the decision harder (lots of fervor now but less about the parts that don't apply to Trump). Worse, whoever is doing the prosecuting will feel the deciscion is hypocritical after allowing Trump to be prosecuted -- possibly to the extent of creating a constitutional crisis
Also, there is the issue that even if any conviction is ultimately overturned merely allowing that kind of political prosecution to go on could have hugely harmful effects. Especially if the court was to decide this case in a way that didn't create a right to immunity from trial only conviction (eg no pre-comviction appeal based on immunity).
So I agree that sometimes it's better not to issue a broad rule but I'm not convinced this is one of those times.
What gets my bp up is the now Imperial Court majority's delusions of grandeur. Judicial restraint is as seemingly foreign to it as stare decisis is a quaint doctrine.
How about SCOTUS just AFQ? Brown Jackson essentially made this suggestion. There is no reason for a decision for the ages.
Like when the Justices ruled on pornography: I can’t give an exact definition, but I will know it when I see it. The Justices know it when they see it. They just don’t want to say it.
Make it four people who care a lot about having the official reporter citations! I'm a state district court level career law clerk who absolutely hates massive string cites involving ___ U.S. ___ with S.Ct. and L.Ed cites all bound up in there. I never understood why this took so long to just get a citation!
Looking forward to May 7th