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There has been a lot going on with our federal judiciary that should trouble all Americans. The gross hypocrisy over the nomination process to the nation’s highest federal court is certainly one problem. The other problem is this is only seen as a problem to some. Because the implementation of such scorched-earth tactics to ensure conservative ideological control is not without positive effect, if only for a select chosen few Americans. Indeed, a radically new (and legally dishonest) conservative shift on the court has occurred where fundamental procedural rules are now being disregarded to ensure positive outcomes for politically favored groups. All of this should undermine the court’s legitimacy as an objective body.
Of course, that’s not how conservatives would describe the situation. At their confirmation hearings, conservative justices tell the public time and again their job is not to make policy but to follow the law. Conservative judges have insisted it is the other side (liberals/living constitutionalists) who are wrong because they “prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them.” I kid you not, they say those who disagree with them are really complaining about “our democracy.”
But here is the thing about conservative rhetoric of following the law as written and about not making policy: in practice conservative judges do the exact opposite. In practice conservative justices regularly reject the law as written to further personally preferred policy and to target politically disfavored groups (today it’s social media companies who are being targeted, who knows whom it will be tomorrow). Nowhere is conservative judicial activism more blatantly apparent, however, than in cases where citizens are attempting to hold police officers accountable.
Let’s get into some necessary legal background. When it comes to holding government agents responsible, the plain language of federal law could not be more straightforward. 42 U.S. Code § 1983 is clear that any government agent who, under color of law, deprives a citizen of their constitutional rights “shall be liable to the party injured in an action at law.” Nowhere in this plain text can language be found establishing preconditions or immunity to such liability. Rather, the law as written simply provides a cause of action against government agents who deprive a citizen of their rights. But can you guess what conservative judges have done with this plain language?
Let me put it in terms some might understand: conservative philosopher-king judges have swooped down from their marble palaces to ordain that all kinds of preconditions and immunities exist to § 1983 liability, despite having no textual support for any of it. It is to the point that it no longer matters whether a citizen can show that a government agent (such as a police officer) knew they were depriving a citizen of their rights. All that matters under this made-up “qualified immunity” doctrine is whether philosopher-king judges have said it matters in previous decisions.
Of course, liberal justices have played an essential part in establishing qualified immunity. The difference is they didn’t play it while claiming their side is strictly adhering to the law as written. Moreover, our federal judiciary has not been controlled by liberals in almost 70 years. Blame for qualified immunity rightly rests with those who have been in control of the federal courts. Here is where I also tell you that I personally favor a plain-meaning approach to constitutional and statutory interpretation. But since the conservative-controlled federal judiciary does not apply a plain-meaning approach in practice (despite endlessly claiming otherwise), laws that are straightforwardly written to attach liability to bad-faith government actors have been transformed into made-up immunities. All because many conservative judges simply don’t like the policy of holding cops accountable. And more recent attempts to revisit the qualified immunity doctrine have failed.
The fact that things are hopeless federally, however, does not mean all hope at holding bad government actors accountable is lost. In fact, there is genuine cause to be optimistic but only because of actions taken by individual states. For example, last year, both Colorado and Connecticut took steps to limit qualified immunity — albeit with some significant loopholes when it came to the latter.
This year, New York City became the first city to end qualified immunity entirely, and New Mexico has also banned the use of qualified immunity as a defense. Such reform is badly needed. Qualified immunity has shielded police officers from being held accountable for violent and horrific abuses and outright robbery. Unfortunately, despite federal law plainly granting a cause of action, the only way Americans can hold police officers accountable is if more cities and states follow the examples of New York City and New Mexico. That’s both encouraging and tragic.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.