In this episode, we look at the nature of judge-made law in two otherwise vastly different arenas: Abortion and Qualified Immunity. In the former, the Supreme Court recently reversed a ruling that had led to a 60-year period of the Supreme Court-created legal abortion regime. In the latter, the Court has repeatedly refused to take responsibility for protecting constitutional rights when they are violated by government officials.
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This year, there have been many fascinating and important Supreme Court decisions – primarily the Dobbs decision, which overruled two major abortion cases – Casey v. Planned Parenthood and Roe v. Wade – ending the 60-year period of the Supreme Court-created abortion regime.
What does it mean for the political health of our country, and how do we counteract the erroneous analysis offered by pundits who claim the Dobbs decision heralds the “End of Democracy.”
Clark Neily – Senior Vice President for Legal Studies at the Cato Institute – wrote the best analysis I have read of the law governing abortion – specifically the constitutional considerations. The article was titled, The Hard Problem of Abortion Rights. Neily joined me to explain what the Dobbs decision actually did, and what the effect will be on abortion law in the country:
Dobbs held quite simply that there is no constitutional right to an elective abortion, overruling a 60-year precedent starting with Roe v. Wade which has protected and held that there is a constitutional right to have an elective abortion. Five justices held that it is simply not a feasible way to read the Constitution. It’s not in there.
Interestingly, Chief Justice John Roberts wrote a concurrence where he said, ‘I would not go that far. I would simply say that the Mississippi law before us – which prohibits elective abortion after 16 weeks of pregnancy – passes Constitutional muster.’
Defining Unenumerated Rights
It would seem to me that Roe simply created a right to an abortion out of nowhere. Of course, it’s not mentioned anywhere in the text of the Constitution. Neily, however, notes that we do have many un-named or “unenumerated” rights that are not specifically articulated in the text the way that rights like freedom of speech is explicitly mentioned in the 1st Amendment. He offers a few examples of these unenumerated rights:
The right to travel around the United States has never been seriously questioned, although it is nowhere in the text of the Constitution. The right to guide the upbringing of your own child – to make decisions about where that child goes to school, and whether they go to church, etc. – is nowhere mentioned in the text of the Constitution, but it has been enforced for over 100 years by the Supreme Court. Did the court invent those rights, or did it instead recognize those rights because they are plausibly among the unalienable natural rights that we all possess, whether they are articulated in the text of the Constitution or not?
Some people think the ability to terminate a pregnancy is among the unalienable natural rights that all human beings possess, and other people think that it is not.
Neily thinks that reasonable libertarians can see it either way, and that there are powerful objections to both views.
It’s hard to dispute, however, that returning the issues to the states represents a usurpation of the will of the people or an end to democracy. In fact, it was the profound opposite – a step forward in recognizing that this issue is the province of the small-d democratic process, and not the judiciary.
Does this mean that the states are free to enact whatever they wish insofar as abortion is concerned – without concern for the Constitution? The short answer, Neily says, is yes. However, he is not certain that states would be able to pass a law that made no exception to save the life of the mother.
Would that pass constitutional muster or not? Answer? We don't know.
On the other side of the ledger, would states be able to allow abortion all the way up until 8 months and 29 days?
“Dobbs leaves some really difficult questions to be answered,” Neily says.
Would states even need to define abortion policy at all? Neily suggests that states might, under the 14th Amendment guarantee of equal protection under the law, have to decide when a fetus becomes a person entitled to legal rights.
This is a question where libertarians are not in agreement, which gets us back to Neily and Schweikert’s extremely nuanced article.
The Hard Problem of Abortion Rights
Neily summarizes the basic arguments of the libertarian camps:
Virtually all libertarians agree that there are unenumerated rights that the Constitution protects, and the right to bodily autonomy and self-defense would be two of those that would be arguably relevant to this setting.
The pro-choice libertarian would likely start with the point that libertarians greatly value individual autonomy – no private individual or a government official may interfere with your freedom without some extremely strong justification. The presumption is that you get to do what you want with your body – i.e., taking whatever kind of medicine, ingesting whatever kind of intoxicants, etc.
They would argue that the government just doesn't have a strong enough justification case for interfering in somebody's ability to [take a “morning after” pill, for example,] at the point of conception. [The embryo/fetus] may mature into a sufficiently strong justification at some point during the pregnancy, but not early on.
The anti-abortion libertarian, would say that the other unenumerated rights like the right to travel right and to raise your own children – even the right of access to contraception – are different from abortion because none of them results in the termination of a human life or a potential human life. The government has an obligation to two different morally relevant beings.
Thus, we have a moral question, which is separate from the legal question. Conflating the two leads to the current climate, where people assume that the Supreme Court must definitively settle every moral and political issue – something which is more properly determined by the legislatures. In this case, the court has deferred to the legislatures and tried to wipe its hands clean of the responsibility for settling such a controversial issue.
And Now For Something Completely Different: Qualified Immunity
Some years ago, I invited Neily to discuss another issue with a complex legal history. As he noted on Twitter, the issue of qualified or absolute immunity should not be nearly as controversial as abortion. What is qualified immunity, who gets it, and what are they “immune” from?
“Immunity,” says Neily, “is kind of a free pass.” Like a get-out-of-jail-free card.
It grants certain people protection from prosecution. Qualified immunity applies when police officers or other government officials harm somebody and get sued for it.
For 150 years, citizens have had the ability to sue a rights-violating government official, including a police officer in federal court.
However, the Supreme Court invented a defense of these officials by dismissing cases where the specific way in which someone was injured has never arisen in the particular jurisdiction before.
Even a meritorious suit, therefore, can be dismissed on procedural grounds.
It is a get-out-of-responsibility free card for rights-violating government officials.
The original statute to hold officials accountable was passed in 1871, during the Reconstruction Era, to make sure that agents of the Federal government did not abuse their authority. How did we come to the place where the legislature reversed Congress’s original and appropriately-drafted statute?
The language of the Enforcement Act of 1871 (aka Section 1983 of the US Code) is quite simple and has not changed for 150 years.
The operative language … says that any state actor – anybody employed by a state or local government – shall be liable to the person injured for the deprivation of any right.
In 1967 (Pierson v. Ray), the Court updated their interpretation in a reasonable way. They made it so that government actors could not be prosecuted for enforcing something that later became illegal – like racial segregation – so long as they were acting in good faith.
The “good-faith exception,” however, later gave way to a more sweeping kind of immunity in the 1982 case of Harlow v. Fitzgerald:
In effect, they rewrote the text of Section 1983 so that instead of being able to sue for the deprivation of any right, which is what Congress said, the Supreme Court, inserted two words – a “clearly established” right. That language doesn't appear in the text of the congressionally-written statute, but the Supreme Court put it in there again in its infinite wisdom.
In order to to satisfy this “clearly established” requirement, you have to [not only] show that your rights were violated, but that the particular way in which they were violated has already been the subject of a prior court case in the relevant jurisdiction.
What does this mean in real life?
[Unless] the courts have already said, ‘Look, you can't punch a guy on the left side of the face on Tuesday when he's wearing handcuffs behind his back,’ then we're going to hand out free passes. If any of those facts is different in the next case, then it's not clearly established. And it's been a disaster.
Neily relays a particularly egregious recent example in which a man filmed the police conducting a violent arrest.
A really good example was a case that the Supreme Court just recently allowed to stand, the lower court in this case – the 10th Circuit Court of Appeals – which covers the mountain states, including Colorado. A young man was watching the police conduct a particularly violent arrest. They thought that this other person was hiding drugs in his mouth, and so they decided they would try to get the drugs out of his mouth by punching him in the face over and over again.
So he started recording it and when the police noticed that he was recording, they came over, surrounded him and demanded that he turn over the recording device so that they could delete the video. Eventually he relented. They weren't able to delete the video and he ended up turning it over to a TV station, and they publicized it. So he sued. And the theory of the case was, "Look, I have a constitutional right to record police in public."
Interestingly enough, the police who tried to stop him from recording and delete the video had been trained by their own department that, in fact, citizens do have a right to record them in public and they must not interfere.
About half of the federal circuit courts of appeals have weighed in on the issue, and they have also said that we have a right to record police. The Justice Department has sent letters to police departments saying there's a right to record police, but guess what? It happens that the 10th Circuit Court of Appeals that covers this particular jurisdiction has not yet weighed in, and so the police asserted qualified immunity and said, “Yes, we were trained that there's a right to record police and public, and yes, we violated our training when we did what we did. And yes, half of the federal courts of appeals have said there's a constitutional right to record police. And yes, the justice department has said there's a right to record police. But the 10th Circuit where we live hasn't said it yet, and therefore we get a free pass. And guess what the 10th Circuit said? Absolutely right.
“Free passes all around. We have not yet weighed in on this issue, so the issue in this jurisdiction of whether you can report police and public is not clearly established, and these officers are entitled to a free pass with qualified immunity.”
That is really qualified immunity in a nutshell.
To the objection that we should be charitable toward law enforcement, who may not be caught up on all of the latest Supreme Court findings, Neily answers that we should allow citizens to determine what counts as a reasonable or unreasonable use of force in these cases – not judges who may have had a history as prosecutors.
Although police may not stay up late studying judicial decisions regarding what has been “clearly established,” he says its important that government officials remain civilly liable for their conduct. As it stands, we the taxpayers usually foot the bill for settlements in cases of misconduct.
What’s wrong with the agency or police department taking liability? Neily argues that the individuals must also be personally liable, so that they would be required to take out liability insurance – like doctors, lawyers and other professionals. Premiums would go up when officers are found guilty of misconduct, and bad actors would be priced out of a job assuming their employers fully or partially subsidized the insurance. Neily further suggests that police departments could incentivize good behavior by returning money to police officers when their premiums fall due to a clean record.
Most police officers do a good job. But the Derek Chauvins of the world – those frequently charged with misconduct – would become uninsurable.
Thus, Neily has found a private, free-market solution to the evil of the abuse of our Constitutional rights.
The same policy could be applied in the case of “absolute immunity,” which eliminates civil liability for prosecutors altogether – even in cases where they knowingly present false testimony to obtain a conviction. If you are the victim of a false conviction based on this kind of misconduct and are later exonerated, you can’t sue the prosecutor – even after serving years in prison.
The Supreme Court has said, ‘Well, we're not condoning what happened here. But no, you can't sue that prosecutor.’
This doctrine, too, was invented out of whole cloth by the Supreme Court in the 1970s and remains a prime example of judicial activism, in which the court overrides the proper job of the legislature in making a rule.
How would prosecutors fare in a “free market” complete with liability insurance?
The good news here is that prosecutors will tell you that they almost never committed misconduct, so if we take them at face value (I'm not sure we should) then their liability exposure is close to zero. Why? Because they never mess up. And who will tell you that they almost never mess up? Prosecutors. So that should be fine.
Let the market decide – not nine unelected robed officials. How’s that for democratization?