Qualified Immunity

Resolved: The Supreme Court Should Overrule Qualified Immunity

A debate today with Professor Chris Walker

|The Volokh Conspiracy |

I am writing this post from New Orleans, home this year's Association of American Law Schools Annual Meeting. As part of that meeting, the Federalist Society is sponsoring a debate on a topic I've written about repeatedly on this page—Resolved: The Supreme Court Should Overrule Qualified Immunity.

I'll be taking the affirmative side of the debate, and Professor Chris Walker will defend it. Professor Tara Grove will moderate. For those at the conference, it will be at noon today in the River room of the Riverside Complex. For those at home, you can watch the debate livestreamed below at noon CST.

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  1. I’d certainly be a vote for the proposition.

    If you were writing a new Declaration of Independence today, “(un)qualified immunity” would probably lead the list of indictments.

    1. And asset forfeiture.

      1. Asset forfeiture is ok so long as the owner gets a trial. The problem is civil forfeiture, where they circumvent human rights by claiming they’re suing the property itself, and you generally don’t get a trial at all unless you can afford to put up a sizeable bond after having your property seized.

        1. The vast majority of defendants are forced to confess and waive their right to a trial. We ought to focus on eliminating the practice of imprisioning people without trial.

          1. ^Amen to that!

          2. I don’t see anything wrong with plea bargaining per se, its does make the system run more efficiently. Most people won’t be willing to serve jury duty 2 or 3 times a year.

            But adding safeguards like requiring disclosure of any plea offers to the jury to keep prosecutors from offering manslaughter, but charging murder 1 if they refuse. Or offering simple possession, and then trying them as a drug kingpin.

            1. Making government more ‘efficient’ is a red herring. And efficient government is an authentic menace.

              1. I think that it was Will Rogers who said that we should thank God that we don’t get all the government that we pay for.

            2. If we didn’t have so many goddam stupid statutes, we wouldn’t have so many “criminals” and wouldn’t need so many trials.

    2. DoI isn’t binding, but I take your point.
      This could make for a fun thread – if you got to make one change to the structural part of the US Constitution (only dorky procedural stuff allowed – no faffing about with abortion or guns or whatev), what would it be?

      I’d turn the President into a Prime Minister and have him elected by the Congress, not the People. We have enough policy gridlock built in elsewhere in the system.

      1. Elect judges.

        1. As someone who lives in a state that elects judges, absolutely not.

          1. As someone who lives in a state that elects judges, absolutely.

            Federal judges rule us, they need to be directly responsible to us.

            An elected Supreme Court would not have 9 Harvard or Yale grads or 5 from NY area/ DC.

            1. By that logic, you’d prefer it if we elected judges and appointed Presidents to lifetime terms, since it is the judges who are more powerful?

            2. As someone who has lived both in states that elect judges and states that appoint judges, the states that appoint judges were less bad.

              Contrary to Bob’s hopes, elections do not make judges noticeably more responsible to us voters. Both systems have their warts. In my opinion and experience, the elected warts are worse.

              1. I live in a state with elected judges. I used to think electing judges was moronic. But I spend a lot of time looking at Erie guesses by federal district and Circuit judges evaluating my state’s law. I suspect federal district court judges are better than state district court judges at interpreting the law, but I have no doubt that my state’s intermediate and supreme court justices are better at interpreting statutes than the federal appellate judiciary. I think it’s because the federal appellate judiciary is incapable of consistent statutory construction rules since federal appointments are more political than state elections of judges, at least where I live. There are exceptions; I think state appellate courts have more truly bad judges than federal courts, and probably fewer exceptional ones, but the average is much higher at the state level, in my opinion.

                I think there are better ways to get judges than local elections, but I’m not convinced of it.

              2. I see both sides of the argument, but I think that it comes down to the individual judge. Someone like Judge Nap or Kozinski, no problem. A Sessions or a Meese, and I’d emigrate. Whoops, I forgot. I already did.

            3. I’m okay with them being Harvard or Yale grads if they are Clarence Thomas or Brett Kavanagh. Not if they’re Ruth Bader Ginsburg or Elena Kagan, or any other ugly Jewish woman.

            4. Or two from the same, small, private high school.

              However the present court has only 8 grads from Harvard and Yale. The notorious RBG actually got her degree from Columbia (the poor dear — I bet the others taunt her unmercifully about that and have formed a Harvard-Yale Grad club that she’s excluded from).

              1. “She attended Harvard Law School and later transferred to Columbia Law School to be in New York for her husband’s work. She was the first woman to be on both the Harvard and Columbia Law Review. She was a rock star talent…”

                (from a recent Forbes article)

      2. Me, I’d truncate 1A after the 5th word.

        1. The 2A would only say that the people’s right to bear small arms equivalent to the current infantryman’s standard shall not be infringed. The Supreme Court would decide on grenade launchers, heavy machine guns and such. Hell, I’d make them tax deductible.

      3. As CJ notes below, QI isn’t constitutional in nature, it’s purely judge made, with no constitutional basis.

        1. Doesn’t make a new DoI any more binding on judges.

          1. Didn’t say it would be. I’m just saying that our own government is replicating many of the wrongs that prompted the American revolutionary war. QI being an example.

        2. My take on Article I, Section 9, Clause 8 (“No Title of Nobility shall be granted by the United States…”) is that this is in fact truly a Constitutional issue: at the time of the Founding, such titles of nobility were (among other things) exactly grants of qualified immunity.

          Just as asset forfeiture (as currently practiced) is a Constitutional abomination, so also is qualified immunity and the damage it does to equality under the law.

      4. I’d mandate that all Congressional votes be role call votes, no exceptions whatsoever. And explicitly rule out the enrolled bill doctrine.

        A lot of the dysfunction in Congress is due to the Constitutionally mandated quorum not being observed, and power being transferred to leadership by the enrolled bill rule.

        1. I would change the legislature wholesale:

          People vote for contracts by candidates, not candidates.
          Each district sends the top three vote winners to Congress.
          Each proxies the number of votes they received.
          A fourth is chosen randomly from voters who volunteered, who proxies all remaining votes.

          Legislators introduce their own bills for a 30 day review period; any changes restart the review period. At the end of that period, if a majority (or 2/3, etc) of legislators in each chamber have signed up as approving a bill, it becomes law.

          No President. The legislature hires managers as needed.

      5. Term limits for Supremes and all other Federal judges. 12-16 years??

        1. In my home state, judges on the highest court (confusingly called the Court of Appeals while the lowest-level court of general jurisdiction is called the Supreme Court) serve 14-year terms and are eligible for reappointment if young enough. (It has happened once.) Why 14? At the constitutional convention, the proponents of life tenure (then the status quo) and the proponents of limited terms, were at loggerheads. Somebody ran the numbers on the actual service time of the life-tenured judges and it averaged out to 14 years. Everyone could live with that.

          1. New York’s system works well, but the election of the supreme court judges is stupid. Almost nobody knows anything about the people they’re voting for.

        2. One of my “When I’m King” proclamations?18 year terms, staggered so two expire during every Presidential term.

          Keeps SCOTUS more in tune with a changing society, allows every President to nominate the same number of Justices.

          1. (of double, if winning two terms)

          2. And why is keeping the Supreme Court in tune with a changing society necessary a good thing?

        3. Age limit. 80 if competent.

          1. Earlier if not.

      6. Allow individual people to file suit against defective laws, which includes being unconstitutional, inconsistent enforcement, internally inconsistent, or inconsistent with other laws.

        1. Full Employment for Lawyers Act of 2019.

          1. Loser pays would eliminate a whole lot of frivolous legal argle bargle. It would also tend to discourage overcharging to encourage plea deals, since dropping the charges would make the prosecutor liable for all those charges.

            1. It would also tend to discourage overcharging to encourage plea deals, since dropping the charges would make the prosecutor liable for all those charges.

              So you think that if a defendant gets acquitted of a particular charge, the prosecutor should be convicted for it?

              1. I think he’s merely arguing that the prosecutor/state should pay attorney fees.

            2. Loser pays would kill more potentially meritorious cases against abuse by government officers than even the most stringent version of qualified immunity ever would. The people who push this usually know this, so it is odd to see it suggested on a thread bemoaning the allegedly unjustified protection of abusive government officials.

      7. Roll the first 8 Amendments into the appropriate Articles so that the Bill of Rights consists solely of the 9th and 10th Amendments.

        1. No, not the first.

          My proposal: Amendment the First: Congress shall make no law.[full stop].

          1. I saw!

            But I think we need more serious proposals. For example, rewriting the Constitution with emojis and internet speak.

            1. Adding “Simon says,” to the start of each of the 10 amendments. Sure, they wouldn’t care, but maybe it would embarrass them a bit.

              1. Except on the 2nd Amendment so there is a solid response to Justice Thomas’s criticism of the Court’s avoidance.

            2. I’m completely cereal!

              1. Okay, silly rabbit, how about compromise?
                1st: Congress can’t even.
                -followed by a lengthy slideshow-
                2nd: *eggplant emoji followed by a suggestive, if inexplicable, comma*

                So on and so forth.

                1. That prefatory eggplant in the 2nd is gonna cause some problems!

      8. Require that all laws, no matter how seemingly uncontroversial, have a 10 year sunset provision.

        1. Doubt you’d agree with that re 2nd amendment related stuff.

          1. Is the 2nd Amendment a law?

      9. Gridlock is good.

        We should go the opposite direction and make normal laws require 60% supermajority, and have them expire after 10 years if not re-approved. This forces Congress to re-evaluate laws from time to time, and, more importantly, put current electees on the hook for it.

        Too much political hiding. This is not good for democracy.

        1. Haha, I beat you to it.

      10. No, because in that World, Congress likely elects a third Bush to become head of the executive.

      11. Fun question, Sarc.

        I’d create a separate high court that resolves all questions of interpretation of the Constitution, controlled by the states instead of the federal government. The Constitution is an agency agreement, with the states giving up some of their own powers to the new federal government, and it’s kind of insane to allow the agent to decide what powers it has under the agreement instead of the principal.

  2. Qualified immunity is not a Constitutional doctrine. It originated a long time ago as a common-law gloss on a federal statute. If Congress disagreed, it could eliminate qualified immunity tomorrow, just as it could eliminate the Eleventh Amendment jurisprudence that has grown up around Sec. 1983. Congress having been given several decades to do the job and passed on the opportunity — damn few conservatives or Republicans would likely sign on to either because it would greatly inconvenience cops — the Supremes, even if they got it wrong as an original matter, have every reason to think that their error, if it was one, has been ratified.

    1. The Democrats are even less likely to overturn QI; they depend on the Cop Unions for a lot of support, and the way things work now (I know it doesn’t make sense, but it does seem to work this way) having unanswerable cops welds the poor brown people to the Democrats who claim to protect them from it, while also keeping the Cops loyal to the Left. And that’s how you get a Chicago, or a Detroit; one party towns, spiraling down to Third World kleptocracy levels.

      1. Cop unions are a trade group, reliably pushing the agenda of its members, whoever is in charge. In one-party towns they do business, warily, with Democrats, because that’s the only game in town, but lean Republican when they have a chance, because Republicans tend to give full-throated support to what cops want as long as the arithmetic isn’t too bad. See, for example, New York City. The idea that cops are “loyal to the Left” would be news to cops.

  3. No Congressman can be charged with assault while sitting in session, unless it results in serious bodily harm or worse..

    1. Might need a few bouncers though. Here in Taiwan the legislators use chairs sometimes.

    2. Preston Brooks would like a word with you. So would Charles Sumner, but he is incapacitated.

  4. Tried to listen to this today, the audio quality was too poor. I feel I am missing out.

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