Block on Trump's Asylum Ban Upheld by Supreme Court
Despite the fact that the judiciary basically redesigned itself to be the ultimate check and balance on governmental authority, when it comes to civil rights, the High Court apparently has not been particularly friendly. Constitutional scholars, including a federal district court judge, have been shouting from a lonely mountain top for some time now about the hostility of SCOTUS to sec. 1983 claims, but sadly, it seems that no one can hear them, or seems to care that the High Court keeps ruling in favor of the government in these claims.
Even the fan-favorite, Erwin Chemerinsky, has been warning of the civil rights doom and gloom at the Supreme Court, and recently wrote about how the Court has repeatedly limited Bivens claims, with the most recent Bivens limitation squashing the, once-hallmark, catchall aspect of the law.
While it may not surprise many lawyers that Mr. "I wrote the Constitutional law book most law students use" Chemerinsky thinks the High Court is headed in the wrong direction, but even when justices speak out, their voices just seem to go into thin air.
Justice Lynn Adelman, a federal district court judge, recently noted in Dissent Magazine that qualified immunity in sec. 1983 cases is a made up doctrine that the Supreme Court fashioned in 1982 "without support in the statute's text or legislative history." If you don't follow civil rights law, sec. 1983 is among the strongest civil rights laws in the land (or at least it used to be). But qualified immunity basically functions to let officials off the hook, and every single justification for providing qualified immunity fails even a rudimentary smell test.
As Justice Adelman explains:
Ultimately, the doctrine of qualified immunity seems to rest on nothing more than a feeling by Supreme Court justices that government officials should not be held responsible for violating an individual's constitutional rights except in extremely limited circumstances.
For 1983 plaintiffs, it can often feel like the case law is a moving target, and one that continually moves closer to the defense and further from plaintiffs. Justice Adelman, and other constitutional scholars, have been calling for the legislature and courts to act to correct and reverse the overzealous use of qualified immunity to protect individuals that don't actually stand to lose much (Justice Adelman notes that in nearly all cases the costs of defense and any judgment or settlement is paid by the government entity rather than the individual bad actor).
Editor's note, January 11, 2018: This article originally stated that "the judiciary was designed to serve as the ultimate check and balance on governmental authority." It has since been updated to clarify that the judiciary redesigned itself to check governmental authority in Marbury v. Madison.
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