By Mike Dorf
My latest Verdict column discusses last week's SCOTUS decision in Filarsky v. Delia, unanimously holding that part-time government employees are entitled to qualified immunity when performing functions that would give rise to qualified immunity if performed by full-time government employees. As I explain in the column, the decision is sensible on its own, but troubling when juxtaposed with the Court's decision earlier this year, in Minneci v. Pollard. In Minneci, the Court declined to recognize a damages remedy (aka a "Bivens" action) against guards in privately-run federal prison. I note the tension between the two decisions: A broad willingness to make law beyond the text enacted by Congress when doing so benefits civil rights defendants (Filarsky) but unwillingness to make law beyond Congressionally enacted text to benefit civil rights plaintiffs. I say that the most logical explanation for the juxtaposition of results is that the Court--including nearly all of the supposedly "liberal" Justices--are unsympathetic to civil rights litigation.
My column laments, but does not try to explain, why the liberals--with the exception of Justice Ginsburg, who dissented in Minneci--appear to share in the hostility to civil rights litigation on display in the Filarsky/Minneci juxtaposition. Here I'll hazard a few thoughts on causation.
I'll begin the exercise by noting the obvious caveat that the premise itself is contestable. Certainly a study of a much larger set of cases would show that the relatively liberal Justices are, on the whole, more sympathetic to civil rights cases than are the conservative Justices--controlling, of course, for the civil right alleged; conservatives would prove more sympathetic to civil rights claims with an ideologically conservative valence, such as Second Amendment claims, claims by whites challenging race-based affirmative action, claims by religious conservatives challenging gay-rights laws, etc. But even with those caveats, when dealing with a garden-variety civil rights lawsuit of the sort at issue in Minneci (an 8th Amendment claim) or Filarsky (a 4th Amendment claim), there is at least a prima facie incongruity in need of explaining when seemingly liberal Justices appear more sympathetic to defendants than to plaintiffs.
Let's consider the "liberal" Justices one at a time:
(1) As noted, Justice Ginsburg gets a pass because she dissented in Minneci. It's not surprising that she would be the most liberal Justice on civil rights litigation, as she is the only member of the Court who, as a practicing attorney, made civil rights litigation for plaintiffs the core of her work.
(2) Justice Breyer wrote the majority opinion in Minneci and I think the key to understanding his views here is to recall that as an academic, Justice Breyer's specialty was administrative law. That was true of Justice Scalia too, but Justice Breyer, unlike Justice Scalia, is a true believer in the administrative state. Although when push comes to shove Breyer is a fairly reliable liberal on high-profile culture-war issues, in some ways he is a bit of a throwback to New Deal liberalism. Progressives from the turn of the 19th/20th Century through the late 1930s battled conservatives over the proper scope of the administrative state. Some of those battles were fought on the turf of the scope of economic liberty. Others were fought on the turf of the scope of federal (versus state) power. But there was also a third front: The proper scope of administration. And in those days, it was progressives who generally wanted to be able to insulate administrative decisions from challenge in the courts. Partly that was opportunistic because the judges were more conservative than the administrators. But there was also a structural reason for this alignment: Modern regulatory agencies exist chiefly to regulate private power, and thus lawsuits challenging the actions of government officials would, on balance, impede the ability of the government to regulate powerful corporate and other private actors. To the extent that civil rights litigation is simply another species of litigation against the government, one who thinks, as Justice Breyer does, that government needs regulatory power, will be skeptical of civil rights litigation.
(3) Justice Kagan fits mostly into the same model as Justice Breyer. She also specialized in administrative law and as a former lawyer for the federal executive branch in the Clinton and Obama administrations, it is not really surprising that her attitude towards litigation against government officials would be ambivalent.
(4) That leaves Justice Sotomayor. Although the administrative state explanation does not apply to her, Sotomayor's pre-judicial career consisted mostly of her work as a prosecutor and a private practice attorney. She may have sympathized with civil rights plaintiffs, but so far as I know, she didn't represent them. The people on whom she would have relied as witnesses (police) were probably sometimes defendants in civil rights cases. Nonetheless, I don't want to rely too heavily on Justice Sotomayor's prior practice experience as an explanation here, because in criminal procedure matters, she has proved to be a fairly reliable liberal--despite predictions by some that her prosecutorial experience would make her more conservative on those issues. So Justice Sotomayor presents us with perhaps a small puzzle.
Thus, in the end, I don't find much of a mystery here. Certainly nothing I've written here undermines the conclusion of my column: The center of the Supreme Court has shifted substantially to the right in the last generation.