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Matt Ford on Originalism and Qualified Immunity
Michael Ramsey

In the New Republic, Matt Ford:  Conservative Judges Are Brawling Over Originalism -- The union between the federal judiciary's true believers in the primacy of our founding documents is fraying (discussing the recent Fifth Circuit decision in Cole v. Hunter, noted here).  From the introduction: 

The Fifth Circuit Court of Appeals handed down a notable ruling on police shootings this week, ruling in favor of a man whose encounter with law enforcement nearly a decade ago left him with profound injuries. It’s the latest development in a case that’s already taken a circuitous path through the judicial system. What’s enlightening about this latest twist is how the court’s originalists, who are now ascendant in the federal judiciary, reached starkly different conclusions.

And from the core discussion: 

The majority made no sweeping claims about [qualified immunity's] validity. They didn’t have to. Judge Don Willett, who dissented from his colleagues’ ruling this week, is among its highest-profile critics in the judiciary. “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly,” he wrote in another case last year.


Note that Willett dissented from the majority instead of joining it. In his view, the Supreme Court’s precedents commanded an outcome in the officers’ favor—and that is precisely the problem. “As a middle-management circuit judge, I take direction from the Supreme Court,” Willett wrote. “And the Court’s direction on qualified immunity is increasingly unsubtle. We must respect the Court’s exacting instructions—even as it is proper, in my judgment, to respectfully voice unease with them.”


Judges James Ho and Andrew Oldham penned a joint dissent to challenge not just the majority, but Willett as well. All three judges are originalists who were appointed to the Fifth Circuit by President Donald Trump over the past two years. And like Willett, Ho and Oldham would apply qualified immunity to the two officers’ conduct based on current Supreme Court precedent. The two judges still took issue with Willett’s approach on ideological grounds.

“Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution,” they wrote, citing recent scholarly works and Willett’s past writings on qualified immunity. “As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.” ...

“The originalist debate over qualified immunity may seem fashionable to some today,” the two judges wrote. “But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines.” They cited Scalia’s dissent in Crawford-El v. Britton in 1996, where he and Thomas argued for limiting Section 1983 claims as they now stand rather than take them back to the pre–Warren Court era.

The article also comments: "There is a curious tendency among some originalist jurists to treat disagreement on the original meaning as heresy."  I don't think that's right at all.  Originalist jurists (like originalist academics) surely recognize that there will be honest and spirited disagreements on difficult points of originalist interpretation and application.  And when these disagreements arise, jurists (and academics) will forcefully argue for their view.  There's nothing remarkable about this, and it doesn't involve accusations of heresy (or, in the title's word, "brawling").  The article cites the disagreement between Justices Gorsuch and Alito in United States v. Haymond, but again -- like in Cole v. Hunter-- that seems like nothing more than a reasonable difference of opinion.

Disagreements among originalist judges do show that originalist analysis can be hard and does not always lead to definite results (but no serious originalist thinks otherwise).  Disagreements also indicate that originalism is not just a cover for conservative results (as some critics contend) -- they suggest that originalist judges are honestly trying to apply an interpretive process that may leave some room for doubt.

(Via How Appealing).