Stop the Histrionics About the Supreme Court’s Immunity Decision
Last week, despite the fanfare, the U.S. Supreme Court did not issue an “opinion for the ages,” as Justice Gorsuch proclaims. Nor did it upend democracy and portend an age of tyranny, with Donald Trump as emperor. “Malarkey” as one I hesitate to quote often might say.
Though the terms are different, the concept is one that has been routed in the law for centuries. Qualified immunity provides for a presumption of immunity from criminal prosecution and civil action and liability for acts within the arguable sphere of the public official’s defined job responsibilities. That underlies every tort claims act in the country and Section 1983, which allows one to sue state and local officials, and Bivens claims, which allow suit against federal officials. Though they apply in the civil sphere – the principles make plain why the Court’s action is correct in a criminal case. There is nothing novel about the Court’s decision. Chief Justice Roberts is one of the most reasonably apolitical public servants our country is honored to have in its service.
If anyone is to assume the mantle of any public office and accept the limits of that office in his or her private life and the accompanying scrutiny, there must be room for subjectivity. Otherwise, everyone and their brother or sister could sue because they disagree on a touchy point. This case was not about Trump, love him or hate him.
Where is the line? That is a factual determination. The Supreme Court did the right thing in sending the case back for that exact inquiry. The federal circuit courts do this the civil context all the time when a federal judge steeped in his unavoidable beliefs (and it’s good we have a mix) decides on the pleadings whether sovereign immunity does or does not apply, absolving the state or the city or a state or local official.
Officer Goines’ trial beginning in Houston is illustrative. We don’t have a king in Texas, yet Officer Goines is going to trial for something he did on duty as a policeman – an act that was outside of his official role as a law enforcement officer. At some point the shield of discretion as a defense is removed. In Goines’s case that may be more readily apparent than in other instances. The principle however is the same.
Rantings, including those of Justice Sotomayor, as well as histrionic foreboding, fed by certain elements of the legacy media, are unhelpful at best and unschooled at worst.
The fact is criminal justice is meted out in the exercise of prosecutorial discretion. The Court recognizes that reality and recognizes its decisions will extend well beyond Trump’s time in the hot seat.