While I am heartened by the ruling, I think it's important to note that SCOTUS is merely saying that the language of the law allows for personal liability of (and lawsuits against) government officials.
Do not rejoice too soon. If the law gave immunity to officials in their personal capacity, they might have equally ruled that you cannot sue them personally under the law. The court is making no principled or difficult stand for any kind of civil rights here, hence you may note the unanimous opinion.
More and more things are falling to the courts to decide because Congress is paralyzed for some reason having to do with the new atmosphere of microsecond attention span and single-issue voting. I think we would be wrong to place so much hope in the courts, and rather try to fix what is broken with our system of creating and updating laws.
Well, that's exactly what the courts on the Federal level are there to do, constitutionally, rule on what the law is, not decide what the law should be. If they do that, they just become a de facto legislature that's not elected.
The actual legislature, as you note, is where these fixes need to occur. Using the courts for it is a civics hack, and one that will bite us in the ass.
>rule on what the law is, not decide what the law should be
There's a huge grey area there. Both require the court to insert its judgement instead of that of elected officials making the law. Whether or not they are ruling on "what the law should be" is not a binary determination and different people draw the line in different places. Every judicial act at that level is one of interpretation, and that will always necessarily carry the risk of an interpretation that is not in keeping with the legislative intent. In which case the remedy is additional legislation to clarify that intent.
In this example, should Congress decide monetary damages should not be in the scope of "appropriate relief", they can change the law. Right now there are undoubted some-- the DOJ who fought this issue for example-- who believe the court just "decided what the law should be." That's probably in the nature of most decisions the court makes-- the losing side will thing the court got it wrong.
They obviously can decide a balance between the law and personal rights when it degrades the latter and the language is unclear. Qualified immunity is a joke and they know it. The wording of the statutes are vague intentionally and in those cases the supreme court can indeed decide how it is to be interpreted since the law makers weren't explicit enough. It's either that or declare the whole thing unconstitutional
> rule on what the law is, not decide what the law should be
Seems like that's very hard to square with Citizens or Shelby County, both of which overturned quite clearly written laws with long-accepted interpretations.
The textualism stuff is, at best, an excuse used when the court wants to do nothing. It doesn't limit the court when it wants to make changes. In this case, the court took as narrow a step as possible into the minefield that leads to Qualified Immunity. It's a baby step in the right direction, but it's just a baby step.
I know the reasoning. It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it. Again, it's just excuse-making. If you don't want to do something you write a narrow opinion and put the responsibility on congress to provide specificity. If you want to do something big you throw out a law based on the constitution.
In this case, they held the way they did because they did not want to write a broad finding, and absolutely not because their hands were bound by some imaginary principle.
This may be totally untrue, but I had a history professor who said that when a company made an argument that it had equal protection under the law from the 15th Amendment, they managed to hire the only living writer of the amendment as their lawyer. Given that it was written under secrecy, his word was all anyone had to go on.
Regardless, the Citizen's United decision was actually pretty clearly pro-free speech, and abuses by companies may well be cleaned up as time goes on and more cases reach the Supreme Court (or so said Scalia when I asked him, honestly it did sound like he was a little embarrassed about how his opinion turned out)
> but I had a history professor who said that when a company made an argument that it had equal protection under the law from the 15th Amendment,
That seems...implausible:
Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2
The Congress shall have power to enforce this article by appropriate legislation.
> they managed to hire the only living writer of the amendment as their lawyer. Given that it was written under secrecy, his word was all anyone had to go on.
The Court (and courts in general) don't tend to look to authorial intent as the original intent that matters, but legislative intent (the intent of the body/(-ies) adopting the provision.) So, the word of the “only living author” wouldn’t be the only thing anyone had to go on; they’d have the records of legislative debates. And an authorial position (even if well-documwnted) that wasn't actively considered in legislative debate would probably not be considered to have much weight.
Scalia's a controversial justice, to say the least, for a variety of reasons, but I don't quite understand this criticism. (I do understand not liking his jurisprudence or his abrasive style.) He and Justice Ginsburg, for example, were famous friends while holding opposite opinions about how to interpret and read the U.S. Constitution; one would think she would've called him out on blatant dishonesty (intellectual or otherwise)
Citizens United (the group) was a non-profit advocacy group that wanted to publish a video critical of a politician. The government wanted to stop that video from being published. That is not money-as-speech, it's speech-as-speech.
Citizen's United (the case) held that any government restriction on political spending was presumptively illegal and in violation of the first amendment. That is exactly my point. It was NOT a narrow ruling tailored toward the needs of PACs trying to avoid censorship. It was a extremely broad ruling throwing out the whole concept of campaign finance regulation.
This is a common and misleading description. I encourage you to read the decision and at least part of Stevens's dissent (which is twice as long as the decision itself). I know it's a lot of pages, but it's got big fat margins.
Now.
(Reposting a comment I made elsewhere)
Before Citizens United, any US majority-owned corporation or union was allowed to make political contributions from a segregated fund. The money in that fund could only come from employees and shareholders. This was, in decades of previous legislation and case law, considered sufficient to protect the 1st Amendment interests of associations of individuals. They can pool their money together for political purposes, put they can't pool it with other people's money.
Before the ruling, Citizens United was allowed to spend money on political activity. They were allowed to spend money on political activity close to an election. They were allowed to spend money, close to an election, to broadcast issue-based political advertisement (e.g., for or against a ballot initiative) on TV. They were allowed to spend money distributing their documentary in any way other than broadcasting it on TV. They could show it in theaters. They could put it on the internet. They could print DVDs and mail them out. They could distribute it to PACs and campaigns for them to spend their own money distributing it, including broadcasting by on TV. They could pay money, close to an election, from a segregated fund, to broadcast their documentary on TV. All they weren't allowed to do was spend money, close to an election, on broadcasting something expressing views for or against a political candidate, on television or radio, to an audience of at least 50,000, close to the election.
Corporations were not banned from electioneering before Citizens United. They were restricted. The laws imposing those restrictions went back until at least the early 1900s. There was a century of case law find some such restrictions constitutional. There was a decision in 2003, just 7 years before Citizens United, upholding the very restrictions that CU struck down. The majority's argument rested on the idea that no "identity-based" restrictions on 1st-Amendment rights are constitutional. But there are such restrictions, e.g. against prisoners, students, and employees of the executive branch. These restrictions remain in place today. The majority invented a 1st-Amendment principle and then selectively applied it to corporations. They did so with no fact-finding in the record of the case on whether the provisions they struck down actually chilled free speech. Fact-finding that the government wanted to do before Citizens United (the organization) dropped the issue.
The majority in Citizens United flipped the table on decades of election law that had survived scrutiny several times before without even claiming that any circumstances had changed. They did it solely because they didn't like the outcome. And they bent over backwards to do it.
> It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks)
No they weren't. Money as speech, for instance, was a bedrock of earlier campaign finance decisions stretching back at least to Buckley v. Valeo, 424 U.S. 1 (1976).
Corporate personhood is a very long established legal concept. It even pre-dates the foundation of the USA, with the principle found in India well over 2000 years ago and in the legal status of Medieval guilds. There is nothing novel about it. The very word corporation derives from the Latin "corpus" or body.
I'm a Brit so have not particular standing in this. If I were a US citizen I would deplore the Citizen's United decision, but not on the grounds of corporate personhood (which as I understand it was never mentioned in the ruling), but rather on the grounds that religious freedom should not grant special rights and privileges not available otherwise. It should be a freedom of belief, not a freedom of action.
How do you think assemblies of people get together to speak who can’t all be in the same place at the same time? They have been paying spokespeople since time immemorial.
I don't think anyone here is interested in debating the merits of Citizen's from first principles. Suffice it to say that your reasoning is not the one the court chose, so I don't know where you're going with this.
My point was simply the wording above: the court CHOSE to issue a very broad decision in Citizen's, just as it chose NOT to issue one here. And the reason is just simple desire and not any kind of principle. The court wanted to, and that's as far as it goes. You see the same skew in logic in arguments about Roe, where the same people (like you) who think Citizen's is fine for throwing out huge regulatory areas based on a novel reading of the constitution suddenly think it's "judicial activism" to find a right to medical privacy in the due process clause.
I was merely responding to your specific comment which seemed to suggest that a holding that groups have First Amendment rights and that they can pay people to represent them was somehow novel.
“It was a (very) novel interpretation of the constitution (both the extension of corporate personhood and the notion of money-as-speech were completely new tricks) that allowed it.”
There is an enormous volume of prior case law that says the same thing.
Citizens United was based on the Court interpreting the statute as imposing restrictions on political speech (prosecuting a non-profit for distribution of a movie about Hilary Clinton) that are invalid under the first amendment. That’s not a situation where the court is saying what the law should be; they’re saying what kinds of laws are allowed under the constitution and which aren’t.
Here, the argument isn’t about the constitution. It’s about what “appropriate relief” means in the statute.
The second is analyzing the law, and finding a provision that conflicts with a provision of the constitution. It’s not very formal, but it’s more than opinion.
It’s not quite that pure. If there are self-contradictions in the constitution, then that gives them some choice about what to compare the law to. They ought to balance that appropriately, but their biases surely creep in.
The Supreme Court issues opinions. That's the actual word they use to describe what they write. You can either form an opinion or you can discover a truth. The Supreme Court does not discover whether it is true or not that a law is constitutional or unconstitutional. Each member forms an opinion, and whichever consensus opinion includes the majority of justices, that becomes the opinion by which other courts proceed to interpret the law.
You might want to mask "discover the truth" with "finding a provision", but the Supreme Court does not "find provisions that conflict with other provisions", they interpret things to form opinions. In this case 5 of them interpreted a provision to be in conflict with the way they interpreted a provision of the constitution. 4 of them did not share either or both of those interpretations.
So there’s an external source for this objective information, or are the judges making their own individual interpretations of “how the law applies”? If the former, why do we end up with split votes that so often fall down partisan lines? Seems like if there were a correct interpretation of a law as distinct from an opinion of a law, they would all have access to it and we could cut the justices down from 9 to 1. And we could call that judge The Conveyor of Truth.
Also, why are Supreme Court opinions literally called opinions, if they are apparently objective?
OK. I was responding to parent, which stated there is a difference between a judge's interpretation of constitutionality and literal constitutionality - i.e. that a law can be unconstitutional regardless of whether a judge interprets it to be such. Which is obviously nonsense.
> They're saying the Citizens United ruling was of the first type, not the second.
You seemed to miss that, so I was trying to clarify it.
I did not miss that. I was responding to it. Perhaps you are not understanding what I am saying.
How did they determine CU was of the first type? Did they interpret it to be of the first type, or is there an objective view of it that simply makes it so? And if the latter, where is this objective view located that all can see? And why did 4 of the 5 justices not have access to see the objective view?
In other words: deciding something is unconstitutional and interpreting something as unconstitutional are exactly the same thing. There is no such thing as unconstitutional outside of interpretation.
> Citizens United was based on the law being [objectively] unconstitutional, not the court’s interpretation of the law [being that it is an unconstitutional one].
I read:
> Citizens United was based on the law being unconstitutional [in the opinion of the court], not the court’s interpretation of [how] the [constitutionally-compatible and therefore still on the books] law [should be applied to Citizens United].
OK. My interpretation seems to be much closer to the words as written. I'd give myself credit for being a textualist, if I didn't think that label was just a scam.
In any case, your read is that the court had an opinion about the constitutionality of CU (which is exactly what it had). And my read is exactly the same: opinion = interpretation.
A law can be so blatantly and obviously unconstitutional that everyone can see it and refuses to arrest or charge people for breaking it. It's pretty easy to construct test examples, "Bob Smith must pay 2x tax", or "Black people can't do X".
The supreme court doesn't make a law unconstitutional. It already was or wasn't. They provide notice to the system that the law will now be seen as unconstitutional or not.
If they get it wrong (lets say we know because another SC overrules them in the future) it doesn't change the constitutionality of the law, just whether it's enforceable or not during those periods.
>The supreme court doesn't make a law unconstitutional. It already was or wasn't.
No. If the Supreme Court is asked whether a law is constitutional or not, they form an opinion on whether it is or is not. The law exists as law up until the moment the Supreme Court is asked and interprets it one way or the other. It does not exist as one or the other until that moment, even though it is the law, and after that moment it only exists as one or the other based upon the majority opinion of 9 people. Laws are not discovered to be constitutional or unconstitutional, because interpretations are not discovered, they are formed.
>A law can be so blatantly and obviously unconstitutional that everyone can see it and refuses to arrest or charge people for breaking it.
That doesn't make the law unconstitutional. It just makes it a bad law. Bad laws can also be constitutional.
The SC isn't supposed to concern itself with justice, that's a sticky matter for the legislators. Their job is to make sure that the legislators followed rules (wrote laws which do not contradict the constitution) and that those laws are properly applied.
Yes, every individual judge has their own skills and opinions and as such, sees the legal question slightly differently, and has different legal interests and thus knows some law more than other. We have a nine as a balance between not having enough diverse backgrounds such that we might be missing the critical input some day weighed against the group being to big to be convenient.
> why do we end up with split votes that so often fall down partisan lines?
People are flawed. Let's say some injustice caused you to get into law. You're likely going to be more familiar with that area, and more sensitive to its harms, than another judge. You may not be voting your ideology, you may be there (as a justice) because of your ideology, and you may have your honest beliefs because of your unique experiences.
I often read opinions I don't agree with, but I can see where the justice just had a different life than me and sees things differently.
> Supreme Court opinions literally called opinions, if they are apparently objective?
The only use of objectivity in this thread is yours. But if someone did use that phrasing, they'd mean that the justices should decide the same on the same issue, no matter if it helps a nazi or a nun. Justice is supposed to be blind.
Sure. But it's not random flaws. Liberal people are flawed to believe rules are written as a liberal would interpret them. And conservatives just the opposite. Because the rules do not exist outside of subjective interpretation.
I may be the only person using the word objective in this conversation, but that doesn't mean everyone else in the conversation is not building their arguments on the existence of objectivity in regards to a judges interpretations.
>I often read opinions I don't agree with, but I can see where the justice just had a different life than me and sees things differently.
That's right. Their opinion is nothing more than their interpretation. A couple of people had the opinion that something was unconstitutional. That doesn't mean it is, just that they believe it is.
Justice is supposed to be blind. And the Supreme Court opinion that CU was unconstitutional helps corporations just as it helps pro-choice non-profits just as it helps pro-life non-profits. But at the end of the day, it was 5 people who interpreted it as unconstitutional. They did not make the discovery that it is unconstitutional.
I like textualism. The point of the supreme court isn't to get everything right, it's to kick badly written law back to the legislators. How do you know the text needs fixing if you don't stick to the text?
Sometimes it is just thrown out to cover bias, but that's not its fault.
Textualism is nothing more than interpreting something in a way that you believe doesn't align with some older thing you also interpreted in a way. "I believe this new law is incompatible with what I believe this old rule says."
You may be right or you may be wrong, anyone can do it, and anyone who does will mostly come to their conclusion based upon their personal political beliefs. Hence, a reason the Supreme Court has so many partisan split rulings.
Textualism is pure nonsense, used to present a false sense of rationality to an opinion. Any self-proclaimed textualist is either deceiving themselves or attempting to deceive others.
> Textualism is pure nonsense, used to present a false sense of rationality
No. You're just saying that people have biases and thus everything is a lie.
Textualism is a thing, and exists outside of law. Textualists think that the authors specific words are important. "Why did Tolkien say X? It must matter, he's a careful author."
I value it in the field of law because legal disputes caused by textual confusion can be avoided through careful writing and textualism leads to the type of thinking that is capable of that. And if nobody cared about the words, how sloppy would the thinking also be?
Textualism outside of law is fun. Enjoy. In the context of law, and this entire thread, it's nonsense used by people to make themselves think they are smart, or trick other people into thinking they must be smart. In law, everything is textualism, and therefore anyone who claims textualist jurisprudence as a distinct thing they practice are simply attempting to classify anyone else as not smart enough to form valid opinions about what words and phrases mean.
> rule on what the law is, not decide what the law should be
That’s just, like, your opinion man.
What is the law? A bunch of words. What do those words mean in combination the the surrounding words? Uh oh, we just hit subjectivity.
“Originalism”, “Textualism”, “Absurdism”, etc. are all pure nonsense. Judges, and most particularly Supreme Court judges are definitively expressing their unique opinions as to what a law is, which is identical to “what a law should be”. Someone could attempt to argue that a judge’s opinion of what a law is may not align with what that judge actually believes it should be, but the evidence of consistent partisan split votes makes such an argument particularly weak.
>"evidence of consistent partisan split votes makes such an argument particularly weak."
There are a number of judges who 'break the mold' by taking 'unconventional' positions in certain cases. Gorsuch, and Scalia before him are known as a criminal defendant's beset friend when it comes to evidentiary rules, even though nobody would say they were 'soft on crime'. On the other hand, there are judges and justices like Alito, Breyer, and Sotomayor who always find a way to decide cases in favor of their preferred litigant.
Sure, they each have their own specific beliefs. But none of them are tapped into the objective “what a law is”. Because that doesn’t exist. It’s just a nice mythology we tell ourselves in an attempt to trick our brains into thinking a 3 branch form of government with checks and balances is well checked and well balanced (which it may be, but if we think of 1 branch as objective even when it can’t be, it makes us feel better about the whole system).
>"But none of them are tapped into the objective “what a law is”. Because that doesn’t exist."
Well there are canons of interpretation, each of which describes how one can read and understand what legislation and law mean. You seem to be dismissing the canons as being incorrect, and I'm not exactly sure why.
Do you think it is possible to interpret a law faithfully? What about a contract?
I’m not dismissing canons of interpretation as being incorrect. I’m stating that canons of interpretation are themselves nothing more than subjective opinion. And there are surely many versions. Some of which align with conservative beliefs and some of which align with liberal beliefs. So what is a “correct” canon of interpretation? Or are canons of interpretation just another layer of obfuscation used to pretend there are objective opinions?
> "evidence of consistent partisan split votes makes such an argument particularly weak"
Except there isn't much of this evidence. Supposedly "right wing" justices vote with the "left wing" justices regularly, even often against the other "right wing" justices.
Yep. Sotomayor will almost never vote with the conservative 'block' on non-unanimous decisions.
Gorsuch, on the other hand, will hold with a death grip to what he believes the intent of the writer of the law/Constitution was, rather to some desired outcome.
Textualist value the 'system' over immediate outcome, because they really believe they are there to call 'balls and strikes,' hewing as close to the 'rules of the game' as possible.
Someone like Roberts takes the whole enchilada into account- precedent, public reaction, political impact, historical judgement, interactions between the justices themselves, but coming from a conservative PoV, I assume because he thinks thats part of his job as Chief Justice.
I, personally, prefer the textualist approach. It allows the separation of powers to mean something and makes the law at least theoretically responsive to the people via their elected representatives. If the majority wants the law to change, they have the means to do so without waiting for a new set of justices.
Those who want to bypass that by hoping their 'team' stack's the deck- well that only works for non-textualists. Trump is finding out, to his intense disappointment, that all those textualists he nominated to the bench, care not a whit for getting things done for him, but just what the law is, as it is written. So the left should be mighty pleased that the 'other side' doesn't play the game by their rules, and that in this area, at the least, they may want to change their approach.
> Congress is paralyzed for some reason having to do with the new atmosphere of microsecond attention span and single-issue voting.
I'd blame First Past the Post voting. [1] It's mathematically always going to lead to a stagnant two party system.
When people are forced to vote against someone they don't want in office, representatives have no incentive to be anything other than "not #otherside".
There is also no longer a reason to have voting in primaries at different times for different states. Having it setup this way means the results are influenced by various special interests (and not just through the media).
I used to believe that, but realistically the problem goes much deeper. Game theory is at most a small part of the problem, a lot of the issue has to come down to the Ingroup-Outgroup dichotomy. With one ingroup and one outgroup, there will only ever be two real types of person, politically speaking. Be they split among two parties or twenty, the coalitions will never be unclear.
The us/then dynamic is an artifact of the human condition. It worked when we were tiny groups of individuals with no global influence or presence. Which is precisely the sort of thing we should be designing modern social systems to mitigate.
The only way a social system could mitigate that is to imitate the time that it worked; self determination for as many small communities as possible. Whether or not that's worth the price is up for debate.
That’s the opposite of what I said. We need people to think of themselves as all part of the same people at some level requiring them to have basic civility and respect toward one another.
It is indeed the opposite, one might even say we disagree. As swell as it would be for people to be essentially decent, they aren't and they won't be ever. But hey, it would be awesome if I'm wrong! No doubt we need better.
I think you're both right, but if I had to pick one thing to fix it would be the first past the post. Encouraging the in-group/out-group mentality is an act of self-perptuation by the two dominate parties. Without a clear "enemy" the party risks fracturing and demonizing the other side, as well as being demonized by the otherside is something that both parties want because it keeps them in power.
But that's exactly the thing, no one has ever needed a party to tell them who their enemy is. With more parties, there would just be clear coalitions, one conservative and one liberal. To the extent that parties switch allegiance, it will be because different people are members, not because existing members changed their political tribe.
> With more parties, there would just be clear coalitions, one conservative and one liberal.
Multi party coalitions don’t line up this way when considering individual issues, which is the problem we’re discussing here: the paralysis of the US Congress.
Imagine if the Libertarian Party, the Ds, and the Rs each held a third of Congress. On things like finance and gun laws, the Ls would vote with the Rs. But on things like abortion and drug laws, the Ls would vote with the Ds.
The meaningful representation of a single third party thus already throws a wrench in the “conservative vs liberal” ideology. “Us versus them” might still exist, sure, but it shifts per issue instead of being a polarized dichotomy. It’s a step in the right direction.
My suspicion is that such a situation wouldn't come about for two reasons:
- People's desire to have a defined in and out group would prevent any party that changes coalition by issue from ever existing in the first place
- Even if such a party came about, shifts in the local overton window (if that's not an oxymoron) of the Rs or the Ds would push the newly formed Ls away until they wound up effectively a part of the other. They wouldn't even give an advantage to the party they wound up with, they'd just compete for the same naturally occurring 50% of people.
On the other hand, I'm in kind of a leftist bubble. I find our typical factiousness endearing most of the time, but it probably skews my view.
I'd like to posit that if we had something other than first past the post we wouldn't have had Trump. And Trump definitely fueled the us vs them mindset.
I actually find their statements to be irrational.
It is absolutely necessary for the courts to decide that the legislature can't give federal agents immunity to violate civil rights. Rebalancing constitutional rights toward the federal government is not a right of congress.
(Congress could only write laws agreeing with this conclussion or they would fail in the supreme court.)
That would be a different argument and case. If Congress were to pass a law providing blanket immunity of federal employees, expect it to be challenged on constitutional grounds especially in a case where the damages were the result of misconduct. All the SCOTUS seems to be saying here (my interpretation) is that if the desire is to provide any level of immunity for government employees, there needs to be a law passed explicitly saying that. Whether or not the law passes constitutional muster is an argument for another day. This is definitely a slippery slope situation.
The campaigns in the last election cost $14 billion[0] (for Congress subtract the $6.6B the Presidential race used). That's a lot of money to raise. It's likely to be a major factor in Congress' paralysis: some significant amount of attention is being diverted away from lawmaking for the common good and instead towards finding ways to raise enough cash to simply stay in office.
The number of dollars spent on federal elections is starting to approach the magnitude of the revenue other large industries (such as cars or movies). So the effect of money in US politics cannot be understated.
Is less output from Congress really a problem? I mean, Court clarifies, and if clarification is beyond expectations of a majority of Congress then they have the ability to rewrite and ship an update?
I feel like this is a useful prioritization mechanic within the structure of government.
Except that the time it takes for these processes to play out means that that the Congress that writes a law and the Congress that has the “ability to update” are rarely the same Congress and often controlled by entirely different parties.
The problem as I see it is that most of the important issues facing society today cannot be remedied at a lower level (inequality, global warming, anything related to the internet) or are the direct result of lower level corruption (discrimination).
Agreed, thanks for following up, these are likely near impossible to solve at a local level. I don’t have good solutions, and I certainly don’t envy the folks we elected who really do need them.
I was actually curious about this - the decision mentions in a footnote that qualified immunity exists for just this reason. Is the story that these officials (and their lawyers) just forgot to raise a qualified immunity defense, and therefore couldn't raise it on appeal? Or is there some reason it didn't protect them?
Qualified immunity doesn't protect a government official who violates "clearly established statutory or constitutional rights of which a reasonable person would have known" [1].
Also, qualified immunity applies to "discretionary" functions performed by government officials, but "discretionary" doesn't mean "whatever the official thinks is ok". It means a function in which the applicable laws and regulations do not dictate exactly what the government official is to do, but leave some scope within which the official has the discretion to choose a specific action. So whether qualified immunity would protect an FBI agent who put someone on the No Fly list would depend on why they did it and whether the applicable laws and regulations allowed them the discretion to do it for that reason. I doubt the applicable laws and regulations allow FBI agents the discretion to put someone on the No Fly list simply because they refused to be a government informant.
The only way to fix it would be through constitutional amendment, wouldn’t it? That would require congress to act and 75% of the states to agree to the amendment. That seems... unlikely.
There is a bit more to it. The government here invoked a general policy against damages remedies against government officials. The court could have credited that argument but didn’t.
I am curious. The recent spate of Covid-19 lockdowns against religious institutions has caused damages. Can folks get money from the governors enforcing the lockdowns ?
Religious institutions generally received less restrictions than the secular equivalents. If anything it would be the theatres, stadiums, etc, etc suing.
I have a friend whose car was torn apart with a knife by cops during a traffic stop. Cops didn't find whatever they thought they would, and my friend was never charged with anything.
According to the law, none of his rights were violated. He can't recoup the thousands of dollars he had to pay after having his car destroyed by cops, either.
This has to do with qualified immunity. It's not so much that his rights weren't violated, as that, per qualified immunity, it doesn't matter, because there is not a very close precedent (like, once upon a time, some sheriffs cut apart a stage coach interior with a bowie knife and got charged) that can be used to base a ruling on. If that seems like a strange doctrine to you, you're not alone!
I wonder if this ruling does not have an impact on qualified immunity as a sustainable doctrine. In this ruling, SCOTUS has recognized a claim against law enforcement for rights violations not by finding a matching precedent but by reasoning from (recent) positive law.
Why would police need to personally reimburse the costs of a search? This seems like something the department should have to pay for. Qualified immunity has no bearing on that.
If I'm recalling it correctly, he said something about it being legal search based on probable cause, and that the cops aren't liable for damage done during a search.
I doubt this ruling will change anything, because his rights weren't violated according to the law. I shared it because cops can do a lot of damage based off of a hunch, and there isn't much you can do about it if they don't blatantly violate your rights while doing so.
That’s awful but it happened to one of my family members. She no longer consent to US police car searches even though she’s never in contact or possession of drugs simply because she doesn’t want her car to embarrassingly get ripped apart by police again (unreimbursed).
A good & surprising ruling, somewhat restoring the supreme court's prolonged erosion of that right after its establishment by congress in the 1871 Ku Klux Klan act. Qualified immunity is purely an invention of the courts; it should be done away with.
How strong is US constitution in front of US courts? Not that much.
US courts don't follow US constitution literally, and take freedom doing a lot of "interpretation."
My law professor in Canada, who once was a US citizen, and a practicing lawyer in US said:
— US constitution is fairly good at protecting what's written in it, for it being near nothing.
His favourite poke at the US legal system was an example how either Texan, or Kentuckian court managed to establish how "A woman is not legally a person" in a way that did not directly contradict any US law, precedent, or article of constitution. And that happened as recently as sixties, if not seventies.
Canada has the living tree doctrine and is similarly liberal with its constitutional interpretation - a document that is already way more watered down than the American.
Yeah. As much as originalism can impede progress and reform in certain ways, so can generous interpretation. I don't want an Alito or an RBG - Kagan's just fine.
So? We all benefit when state power is applied in a consistent and rights respecting ways. It doesn't do to allow government to run roughshod over one group of people just because you approve of the outcome (or disapprove of the victim), because eventually that process will be applied in a way you'll disapprove of.
If we apply your statement are you saying corporations have zero constitutional protections? The state could seize their assets without compensation? Enter a company’s property to search it at any time and without a warrant?
My comment was a reference to corporate personhood, the legal notion that corporations are considered to be persons per se (i.e. not “groups of people”). Which is practiced in some countries, like e.g. the United States.
That makes no sense to me, but that’s the kind of world we live in.
So relax. Corporations don’t need your apologetics—they’re doing just fine.
That's only a partial remedy. Having your home illegally searched is not made right simply because anything found during that search can't be used to prosecute you. You still had you home and privacy violated.
Yes parallel construction is of a concern, but that's not what parallel construction is. Parallel construction is where they use the illegally gained evidence to figure out who they can get legal search warrants against to gain additional legally gained evidence. The illegally gained evidence itself never gets used in court.
Parallel construction does not mean the evidence gets to be introduced. Other evidence collected by other lawful means would have to be obtained. Parallel construction refers to the act of lawfully collecting other (perhaps similar) evidence from a different source, the existence of which was revealed by the previous unlawful search.
In any event, it’s a relatively rare phenomenon, and if you find yourself in trouble with the law, follow the ACLU’s advice regarding your rights, and don’t skimp on a criminal lawyer.
If I have to pay a ton of money for a lawyer that strikes me as itself being a violation of my rights. A system where you are only protected if you pay isn't justice, it's a protection racket.
It’s not a protection racket, because the person you’re paying isn’t the person who would otherwise threaten you. And an attorney cannot represent both sides. That’s like Professional Ethics rule number one.
Besides, the government doesn’t have the time or resources to criminally prosecute most minor violations of the law. If you end up in a position where you need a criminal lawyer, it’s rather likely you did something really foolish to attract enforcement attention.
And if you can’t afford an attorney, you can always take your chances with a public defender. But I wouldn’t recommend it.
At least in the US, this view seems misinformed. The US holds 24% of the worlds prison population and imprisons .7% of its population.
An unfortunate reality is that US law enforcement tends to be selective in its enforcement and prosecution based on geography and class. A college student may get a slap on the wrist(expulsion) for a drug offense while a street kid goes to jail.
These figures don’t change my advice at all. Punishment and procedure are two separate subjects. If you think the punishments the US imposes are severe, that’s an even greater incentive not to commit crimes you can’t afford to defend yourself against.
And the vast majority of prisoners aren’t being convicted and sentenced due to parallel construction or other such trickery. In most cases, they’re the result of a garden-variety guilty plea, often to crimes of lesser severity or magnitude than the original charges.
A dude recently got kneeled to death by cops (not president authorized death squads or court authorized death squads, mind you, normal cops) for allegedly a fake $20 bill. I think there is plenty to worry about.
This is close to the “nothing to hide” argument, but even then it doesn’t work. People with nothing to hide, doing nothing wrong, are scared of being targeted. That is a completely unacceptable situation. That is definitively illegitimate governance that asks for violent retribution.
Innocent people plead guilty. 66% of drug crime exonerations were from guilty pleas, not trials. This fact invalidates most of your reasoning in your last two replies above.
It doesn’t invalidate my advice that you should hire the best defense counsel possible. We have an adversarial trial system because we don’t know of any better system to get to the truth of a dispute or a charge, and if you find yourself on the wrong end of it, you’re well advised to come armed with the best defense possible.
Case in point: the very document you posted says, “The proportion among adult sexual assault exonerations is particularly low, 4%. Perhaps avoiding the stigma of a sex-crime conviction is so important that few innocent rape defendants plead guilty...”
Are innocent people imprisoned? Yes, that happens and that is terrible. I don’t think any right minded individual wants that. But as the document itself pointed out, most innocent prisoners plead guilty. If they had good defense counsel (which they almost certainly didn’t) and they were in fact innocent, then they would not have been advised to plead guilty. The document itself says that most innocent prisoners plead guilty to avoid pretrial detention, which no competent criminal defense lawyer would recommend.
The existence of exceptions to a general observation doesn’t mean the general observation is invalid, just like the existence of cosmic rays screwing up a computational answer doesn’t make the general design of a CPU a doorstop.
> If you end up in a position where you need a criminal lawyer, it’s rather likely you did something really foolish to attract enforcement attention. And if you can’t afford an attorney, you can always take your chances with a public defender. But I wouldn’t recommend it.
> If you think the punishments the US imposes are severe, that’s an even greater incentive not to commit crimes you can’t afford to defend yourself against.
Those come across to my eyes as “you’re the idiot who got yourself here, shoulda thought of consequences sooner.” But given
1) unequal policing that targets the poor,
2) police corruption that goes uncorrected,
3) overworked therefore often inadequate public defenders,
4) the practice of throwing the book at anyone who dares go to trial among other ways of coercing a plea deal,
it is way too easy to be innocent and poor, with your only real options being “plead guilty for 3-5 years” or “go to trial with the deck severely stacked against you and risk 30+ years.” With 95% of cases pleading out, there’s simply no way that innocents caught in the system are anywhere near “cosmic ray” levels of rare. Which brings us back to this statement from ‘harimau777 way upthread:
> A system where you are only protected if you pay isn't justice, it's a protection racket.
You disagreed with the second half of that statement, and that’s fair. Maybe a better way to state the main sentiment there is: A system where you are not protected unless you can pay isn’t justice.
The fbi does it s lot these days and gets away with it. Actually the latest FISA renewal gives FBI and 16 other gov agencies access to full raw internet data and they can search it all they want...but they need a warrant to bring it to court. However, by now they've become experts at parallel construction and they usually outsmart judges and even defence attorneys on technical issues.
If that's happening, it's likely due to incompetent people in power as officers, judges, and prosecutors (my experiences). And it will continue to happen.
I've never quite understood how the "no fly list" is itself a constitutional process in the first place. It lacks due process and transparency with an appeal process that is administrative rather than judicial. I don't understand how the government can constitutionally invoke a penalty without first having to prove that some violation has occured.
Layered complexity induces logical contradictions. Specifically here, the modern world forces many people to fly, even though it technically remains a voluntary activity. Businesses are free to reject serving you for any reason, even making such decisions in lock step with the rest of the industry. Ergo, your right to travel gets constructively neutered through commercial law, even though your axiomatic/primitive rights have purportedly not been violated.
AFAICT the airlines wanted all of that bullshit legislation to indemnify themselves from the damages caused by terrorism. Technically you might be able to create your own airline (and airports) that rejected all of the groping theater, etc. And perhaps after decades of fighting in court you'd win the right for your companies to not have their freedom hampered in such a manner. But none of that is economically prudent, so we're stuck with the blatantly anticonstitutional regulations.
Airports are a mess of constitutional violation all over the place. That they can search you and that protests can't happen at airports are already violations of the constitution. When you have the entire US populace almost united together in effort is when the constitution breaks down. See WW2 and the internment of Japanese civilians and 9/11 with the creation of department of homeland security and all it's abuses.
the government doesnt have any money of its own - thats our money. to rephrase: the government does something the courts rule as wrong, so they take money from us to pay for their mistakes. the injured party clearly deserves recompense, but i feel like we can do better than this.
>the government doesnt have any money of its own - thats our money. to rephrase: the government does something the courts rule as wrong, so they take money from us to pay for their mistakes. the injured party clearly deserves recompense, but i feel like we can do better than this.
I see and understand your perspective. You're right, "government" does do things that, prospectively, contemporaneously and/or retrospectively are inappropriate, unfair and/or just plain bad/stupid.
That said, at least in the United States, "government" isn't some foreign agency or third party. Government is us. All of us, through those we select as representatives in our town, county, state and federal governments.
We can (and, in my estimation, should) do better. But I believe it's incorrect to place blame on some nebulous "government", as if it's not us Americans.
A good way to start "doing better" would be to remove the perverse incentives that make money the primary currency of our political system.
Independent, non-partisan creation of local/state/federal election districts is a good idea too.
That's a huge problem. For example[0], in the 2018 elections, 53% of Wisconsinites voted for Democratic state (assembly and senate) candidates, but those candidates only won 36% of seats in those bodies.
That's just one example. I'm not singling out any particular party, there certainly are states with Democratic majorities that have created district maps that favor their candidates too.
In any case, I agree with OP, but just wanted to point out that, at least in the US (and many other places too), we are the government, not downtrodden serfs crushed under the heel of some other group.
That seems like a catch 22. In order to elect people that represent us we need to fix the system (e.g. by fixing redistricting), but in order to fix the system we need to elect people that represent us.
For that reason, I don't think that the government really represents us in any meaningful way.
> That seems like a catch 22. In order to elect people that represent us we need to fix the system (e.g. by fixing redistricting), but in order to fix the system we need to elect people that represent us.
>For that reason, I don't think that the government really represents us in any meaningful way.
There are lots of ways to "fix" the system. Currently 21 states have non-partisan or bi-partisan redistricting regimes[0], so it's certainly possible to do so, either via a state ballot measure[1] (26 states have those) or a legislative process.
Obviously, states without ballot measures are a hard sell, especially in state legislatures that have strong majorities of one of the major parties.
But like I said, "the government is us." And that means voting, and not just in presidential election years -- since elections are regulated on the state and county levels.
Which means two things:
1. Your vote in local/state elections not only gives your vote more weight, it's also easier to change both our representatives and the laws they pass than in Federal elections;
2. A smaller electorate (for mayor, county executive, state assemblyperson/senator) that not only votes, but makes their opinions and ideas clear as to the sort of government they favor can have a strong impact on how elections (including Federal elections and redistricting) are planned and executed in their state.
That voter turnout for general elections in presidential election years is usually around 55-60%[2] (although this year was a bit higher), but primary turnout is generally significantly lower.
In non-presidential election years, turnout is generally much lower, even though local and state elections generally have a much bigger effect on governance in states and localities.
As such, if you want change in your government, it's easier than you think because state and local elections are the ones where most of the change we need would come.
What's more, most people would agree that fairer redistricting and a smaller but still huge number would agree that reducing the influence of money in elections (via public funding, shortening the time for campaigns, etc.) are important to the health of our political system and (small 'd') democracy.
If you just throw up your hands and say why bother? "I don't think that the government really represents us in any meaningful way," you're not making things better -- by not voting or advocating for positive change, you're implicitly endorsing the status quo.
If you aren't clear as to how that could work, here are a few resources:
Learn about Ranked Choice Voting. A dozen states and localities have/are about to implement it. It can give more voices a real chance and help to break the stranglehold of the two major parties:
I agree with you that it's our money, and, in the same vein, it's also our government : ).
So, IMHO one answer to your question is we can engage in activism to motivate our government to change our laws and regulations to prevent a repeat of the violation in question, and vote for representatives who also would support such things.
Like, once you find a bug in production, you fix it, and ideally then do an analysis of how it got there and what practices might be worth changing and maybe you also write a test in case someone slips up in the future.
If government money is our money then the government is, by extension, us. So the injured party is suing you and me for what we did to them, and getting our money in compensation.
I suppose it should be noted rights are limited to protections expressly provided by government. For example there is a right against improper search and seizure but there is no right to privacy. Therefore violations are limited to harms of conduct expressed by letter of law opposed to implied transgressions, inconveniences, or embarrassment.
In the decision the justices note that qualified immunity was not the matter brought before the court, and it may yet shield the agents in question from personal liability.
Good ruling. Now if we can target qualified immunity for state and local government employees. Suing and collecting money from the government punishes the tax payer.
>Suing and collecting money from the government punishes the tax payer.
Which, to be clear, is a GOOD thing. We live in a democracy, and the tax payer is ultimately responsible and should be punished in some small way. We don't have to shut off our brains when someone up for election preaches about "law and order"/"think of the children" and accuse opponents of being "weak on crime". Everything from over criminalization to qualified immunity could be wiped with the stroke of a pen if our representatives at the federal and state levels acted. That that hasn't happened is ultimately our fault. The very least we can do is pay damages when the result hurts people.
Yes there should be more individual accountability too, but power always should go with some level of responsibility. Tax payers have power as well. It's very irritating to see people separating themselves from all that and acting so passive. Democracy isn't a spectator sport.
It's a good step. Hopefully the next one will be to curtail the overreach of "sovereign immunity" in protecting entirely too much bad behavior. It's entirely possible that this or a similar case could now proceed to find damages for the plaintiff only to arrive again at the Supreme Court to be dismissed on immunity grounds.
I’m in favor of ending unlimited qualified immunity but capping the maximum damages seems like a reasonable compromise for most cases. In the most egregious situations, the cap should be removed and government officers should face the same penalties as they would had they been acting as a private citizen.
Qualified immunity should only apply if the person is following protocol. If the protocol is wrong, the suite should go against the policy setter (municipality). If the person violated policy, it should be on them. If they neither violated nor followed policy, it should be determined by the courts.
I don't generally agree with capping damages. This could prevent real damages from being reimbursed. Capping intangibles could be ok though.
Agents of the government are generally indemnified against liability for acts in good faith. Accountability comes from work rules.
It’s unwise to open that door to personal liability, as there are many liability risks that even a low level official faces, even when their conduct is correct. Frankly, you’d need to be an idiot to have anything to do with HR or procurement working in any government subdivision with personal liabilty.
>In the most egregious situations, the cap should be removed
That doesn't make any sense to call a cap, you're basically saying "the awarded damages are not to exceed $N except for in cases where they are ruled to exceed $N."
Im confused. The article seems to be saying you can sue government agents who violate your rights, but the ruling seems to only be saying you can sue the government. Which seems dumb. The agent violated your rights, not the taxpayers.
> The article seems to be saying you can sue government agents who violate your rights
Not quite. It's saying that Congress has the authority to make a law that allows you to sue government agents, in their personal capacities, if they violate your rights in particular ways. In this particular case, Congress had passed such a law that applied to the rights violation in the case.
I'm pretty sure the ruling is saying that due to how the Religious Freedom Restoration Act is worded, suing individual agents of the government qualifies as redress against the government; The RFRA more specifically defines what 'the government' means to include agents of the government acting in their individual capacities.
> (a) RFRA’s text provides that persons may sue and “obtain appro-priate relief against a government,” 42 U. S. C. §2000bb–1(c), includ-ing an “official (or other person acting under color of law) of the United States,” §2000bb–2(1). [1]
I think that no-fly lists are pure BS, but for the sake of argument, flying is not a right as long as it's provided by a private entity. When a private entity flies you from point A to point B they have the right to refuse service (see what happened to the anti-maskers that did not want to follow the airline guidelines)
I agree with you, but to answer your argument: the difference is that one is airlines choosing who they want to serve, and the other is the government choosing who airlines are allowed to serve.
I have no problem with the former, but I have a big problem with the latter, particularly as it's currently implemented.
I don't know exactly how this works, but you can definitely end up on the list because the airlines OR the gov want you on the list. I guess that once you're there it makes little difference, but I agree with you that these things should be treated differently (the same way in which your SSN is your personal identification number when this is not it's original purpose but private entities hijack it anyway)
This is great. However, even as a Biden voter I find the latest ruling regarding state election laws deeply troubling. It basically sets a precedent that election laws can now be permanently finagled.
Who knows (people can try to sue for anything, by filing paperwork), but this doesn't address standing, and won't make a meritless case less meritless. So it doesn't change anything re the election.
Do not rejoice too soon. If the law gave immunity to officials in their personal capacity, they might have equally ruled that you cannot sue them personally under the law. The court is making no principled or difficult stand for any kind of civil rights here, hence you may note the unanimous opinion.
More and more things are falling to the courts to decide because Congress is paralyzed for some reason having to do with the new atmosphere of microsecond attention span and single-issue voting. I think we would be wrong to place so much hope in the courts, and rather try to fix what is broken with our system of creating and updating laws.