Supreme Court Watch

To put this more directly, for all of the outrage over *qualified* immunity, the demise of Bivens effectively leaves federal law enforcement officers with *absolute* immunity from civil liability for even the most *egregious* constitutional violations.

Why are we okay with that? https://t.co/rbF8fUKlzF

— Steve Vladeck (@steve_vladeck) June 8, 2022

Bivens was a 6-3 ruling, one that Justice Harlan (the conservative on the Warren Court that understood that was complicated) joined. But, soon enough, the Supreme Court started a path of basically limiting it to its facts. This is a problem since as noted back in Marbury v. Madison, rights needs remedies, and Congress is not really ready to apply better ones here.

As noted by Justice Sotomayor today, "a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases." The Thomas led Court did not bury Bivens (Gorsuch wanted them to do so), but found yet another exception. Sotomayor for the liberals dissented though they found a reason to reject the First Amendment claim.

Congress can, of course, clarify these things. They can pass a new law changing the abusive use of qualified immunity, where even wrongs that should be damn obvious are deemed immune from liability. As Steve Vladeck noted separately, with the Supreme Court deciding less cases, what is "clearly established law" will continue to be hazy. Result? More qualified immunity results.

The result here -- from the tenor of recent years and the oral argument -- is far from surprising. It is less obvious that the Supreme Court -- with thirty cases left -- would have a separate opinion day to hand down a single one. The case is not trivial, as seen by the page length, but far from special. Oh well. 

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An Arizona man convicted of murder in the 1984 killing of an 8-year-old girl was put to death Wednesday in the state’s second execution since officials resumed carrying out the death penalty in May following a nearly eight-year hiatus. 

A recent SCOTUS opinion which received some negative attention involving making it harder to defend the innocent came out of Arizona.  But, everyone up for execution is not innocent.  Few are really.  There still are a range of problems and that includes in the two executions out of Arizona.  

Frank Atwood is not a very sympathetic character.  Still, I reject the need of -- after over thirty five years -- execute this guy.  His final hail marys, rejected in three per curiams without comment or dissent, are likely not great arguments under current law.  I am open for some capital defense expert to tell me differently.  This includes the claim made in one recent appellate argument that his current medical condition makes lethal injection particularly painful.  Clearly, this Supreme Court doesn't care about that.  

[There are three orders.  One is a habeas petition challenging how procedure used to determine his crime was death eligible.  The other two are requests for cert. involving the use of lethal injection given his medical condition and a claim evidence of innocence was wrongly denied.  I do not get the sense from the coverage the innocence claim had much merit.]

But, my main complaint here is that no justice explained themselves here.  That is wrong.  A person's life is at stake.  He made multiple claims.  A brief explanation is what he and we deserve.  Anyway, he was executed. 

(So far, this would be the last execution Breyer will be involved with as a justice.  He plans to fill in ala Souter on the lower courts.  Kennedy does not seem to be doing that.  On that front, maybe Breyer should have provided one last statement.)

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According to a criminal complaint charging Nicholas John Roske with attempted murder of a federal judge, two U.S. Deputy Marshals spotted Roske get out of a cab in front of Kavanaugh’s home at approximately 1:05 a.m. He looked at the marshals and then walked down the street. Not long after, Montgomery County got the call from Roske saying he was suicidal and came to kill Kavanaugh.

Montgomery County Police Department officers were dispatched and arrested Roske without incident while he was still on the phone with 911, according to the affidavit. In his suitcase and backpack were a Glock 17 with two magazines and ammunition, pepper spray, a tactical knife, a hammer, a screwdriver, a crow bar, zip ties and duct tape, along with other gear.

Federal judges and their family members have been threatened and in a few cases murdered. I cited this story on one liberal blog and got a few replies sneering at Kavanaugh or how the Senate will selectively care about the safety of justices and so on.  The increase uptick of domestic terrorist threats are not only going to threaten the Kavanaughs.  So, you know, maybe take this sort of threat to peaceful government seriously.  

Some are mad at the Senate quickly voting to expand protection of justices' families (the bill is held up in the House).  I understand the raw emotional reaction, but what is the idea here?  Should they block protection of the family members of justices until abortion rights pass?  Do we think the security of top officials will be on the same level as the average person? And, yes, it is easier to pass this limited thing than major gun policy! 

The anger is righteous and on some level it probably is not wrong.  We should demand change.  I have already said that.  But, in the process, let us not handwave real threats to the federal courts.  That's just foolish, especially since some MAGA type can go after a liberal justice too.  

The person here appears to have mental health issues as well.  He went to Kavanaugh's home with all that stuff, calls the authorities notifying them he was there (marshals protecting Kavanaugh's home already saw him), and eventually surrendered without incident.  Not exactly how some other case might go down.  But, someone so armed in some other case very well might be much more dangerous.  We should not handwave this.

(In one article I read after writing this, it was suggested that it looks like the person changed his mind when he saw marshals protecting the home.  He seemed to be quite prepared, down to his footwear.  All totaled, this just goes to show that cases in the middle of things have a "to be continued" quality.)

ETA:  I saw something that reminded me about the murderer of a son of a federal judge.  He had material regarding Sotomayor in his possession too, so might have been considering targeting her.  

SCOTUSBlog has some more about the person executed, including means to make the execution less painful for him.  There is a real problem with how lethal injections have gone down in recent years.  A basic problem is that conservatives (even when Kennedy was there) never really gave much concern about the issue. But, that does not erase that it is an issue and/or lower courts and governments can spend more time on it. 

I think his argument was weak, even in respect to the limited argument of some that they in particular have special circumstances that can make the execution a problem.  But, a serious statement on the rules of the game here would be appropriate, including why his case does not work. A single justice at the very least could flag such things.  

Also, there have been some people who emphasized how bad the damages case is.  I don't know, but will respect their judgment.