Adam McCoy

Chief Justice John Roberts has received relentless attention lately as the new potential swing vote on the United States Supreme Court. The entire legal community is looking for indications on how he will rule on a variety of legal issues. The Court has yet to take up many of the most controversial potential issues, however recent decisions do give some indication of how Chief Justice Roberts may guide the Court for the foreseeable future.

Chief Justice Roberts has recently used his vote and opinions to make clear to the legal world that the Supreme Court itself holds the unique authority to overturn precedent from the nation’s highest Court. In June Medical Services v. Gee, Louisiana had recently passed a law, which the Fifth Circuit upheld, requiring abortion providers to have admitting privileges at a hospital within thirty miles of where the abortion is provided. This law is identical to the law the Supreme Court struck down as unconstitutional in Whole Woman’s Health v. Hellerstedt by finding it placed an undue burden on the woman’s right to an abortion. Chief Justice Roberts dissented in Hellerstedt, however when Louisiana passed a law in direct contradiction to that existing precedent, he still granted an injunction to stop implementation of the law. Even if Chief Justice Roberts would prefer the law was different than Hellerstedt, his vote in June Medical Services shows he will likely not let states and lower courts contradict precedent on their own.

Chief Justice Roberts underscored his insistence lower courts follow all Supreme Court precedent by siding with the liberal leaning justices to stay the execution of Bobby Moore in Moore v. Texas. Again, the Chief Justice dissented in the earlier case, which stayed Moore’s execution in 2017 and remanded to the Texas court with instructions on how to evaluate Moore’s intellectual disability. However, when Moore’s case returned to the Supreme Court, he switched his vote and agreed to stay the execution. Specifically, Chief Justice Roberts said the Texas Court of Appeals “misapplied” the Court’s previous opinion.^[1] The Texas court “repeated the same errors that [the] Court previously condemned—if not quite in haec verba, certainly in substance.”^[2] Chief Justice Roberts had dissented from that previous condemnation of errors, however when the lower court ignored that order from the Court, he switched his vote to force lower courts to abide by existing Supreme Court precedent.

The importance of precedence was reemphasized in Madison v. Alabama, by Chief Justice Roberts joining the opinion of Justice Elena Kagan holding the death penalty unconstitutional when dementia prevents the prisoner from understanding the state’s reason for the execution. Again, the Chief Justice provided the decisive fifth vote by joining with the liberal leaning members of the Court. Justice Kagan grounded her opinion in the Court’s previous decision in Panetti v. Quarterman, which held the Eighth Amendment prohibits executing a prisoner whose psychotic delusions prevents them from understanding the state’s reason for the execution. Chief Justice Roberts dissented from Panetti and disagreed with the Court’s conclusion if the prisoner did not understand the reason for the execution then the execution had no retributive value. 

However, in Madison he provided the decisive fifth vote for Justice Kagan to expand the precedent of Panetti to include prohibiting execution when memory loss is the reason the prisoner cannot understand the reason for the execution. Justice Kagan said the logic from Panetti focused on whether the mental defect, in this case memory loss, had the effect of creating “an inability to rationally understand why the State is seeking execution,” and when that understanding is missing the prisoner cannot be executed.^[3] Chief Justice Roberts supported treating this precedent as controlling and using it to decide Madison, despite the fact he dissented in the original case.

These recent decisions indicate that respect for precedent will play a critical role in how Chief Justice Roberts leads the Court in the coming years. Even if the Chief Justice dissented in an earlier case, he will not simply treat that decision as illegitimate, but will require the Court to operate under the acknowledgment of that precedent. Additionally, Chief Justice Roberts has sent the message that states and lower courts must respect all precedent from the Supreme Court, and only the Court can change its own precedent. Chief Justice Roberts is making it clear that acknowledgment and respect for precedent will play a necessary role in how he evaluates future cases and how he eventually decides to cast his possibly deciding vote.  

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^[1]Moore v. Texas, 586 U.S. ___, ___ (2019) (Roberts, C.J., concurring) (slip op. at 1).

^[2]Id.

^[3]Madison v. Alabama, 586 U.S. ___, ___ (2019) (slip op. at 12).

The Supreme Court Can Fix Qualified Immunity

Daniel Becker

The doctrine of qualified immunity has come under increasing scrutiny. While Justice Sotomayor has led the charge for reform at the Supreme Court level, lower federal courts have begun to call for a reevaluation of the doctrine. One court called the current application of qualified immunity “overprotective of police and at odds with the original purpose of section 1983.” On the Fifth Circuit, Judge Willett criticized “the kudzu-like creep of the modern immunity regime.” Critics point out that qualified immunity is extremely difficult for plaintiffs to surmount, which often results in no remedy being granted for violations of a plaintiff’s rights. Two simple tweaks to qualified immunity may be able to bring the doctrine back to its roots and allow the validation of violated rights.

Courts apply a two-part test to determine whether an officer is entitled to a grant of qualified immunity. The first part of the test asks whether the officer’s conduct violated a constitutional right. The second part of the test is to determine whether the law was clearly established at the time such that the officer should have known that the conduct was unlawful. The purpose of qualified immunity is to protect officers when they act in tense situations where the law has not provided clear guidelines. Thus, qualified immunity is granted unless the officer violated a clear constitutional right and the officer’s conduct was clearly established as unlawful at the time of the incident.

Ideally, a growing body of case law would establish what conduct violates constitutional rights and would slowly eliminate the gray areas in the law. This, however, is not the case. The Supreme Court does not mandate that courts answer whether a constitutional right was violated. Courts often find it easier to decide that the law was not clearly established in a given case, instead of first finding that the conduct was a constitutional violation and then finding that it was not clearly established. Thus, the growing body of case law, which would gradually eliminate some of the legal gray areas around constitutional violations, never grows. This is precisely the point Judge Willett made in his concurrence. Avoiding the first test necessarily forces the stagnation of the second test because the law will never be clearly established. To fix this stagnation problem, the Supreme Court can mandate that lower courts apply both prongs of the test to all cases, which they were required to do from 2001 until 2009.

Another potential solution to the difficulty of prevailing on a claim that constitutional rights have been violated is for the Supreme Court to restore the ability of courts to examine the intent of the officer. This would move the qualified immunity from an objective analysis based on what a reasonable officer would do to a subjective analysis based on the officer’s intent when he performed an action. For example, the Supreme Court sustained a qualified immunity defense where an officer killed the driver of a fleeing car. The car was about to hit a spike strip when the officer opened fire. The officer would later tell his superior officer “How’s that for proactive?” Because qualified immunity is an objective analysis, these words could not be used in the Court’s legal analysis. Under a subjective analysis, however, those words could show the reckless disregard the officer had for the law and thereby bar him from successfully asserting qualified immunity.

Qualified immunity is an important doctrine. It tries to balance the interests of officers in performing their duty without fear of legal consequence, the interests of citizens in the protection of their constitutional rights, and the interests of society in law enforcement and protection from crime. The courts increasingly appear to have skewed that balance in favor of law enforcement. Spurring the growth of a body of case law to establish when conduct violates the constitution and allowing courts to look at the subjective intentions of officers would go a long way toward fixing the doctrine.