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Conservative Judges Are Brawling Over Originalism

The union between the federal judiciary's true believers in the primacy of our founding documents is fraying.

Tom Williams/CQ Roll Call/AP Images

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.

Originalists call for understanding the Constitution’s provisions through the original public meaning when they were drafted. The school of legal thought is most commonly associated with Justices Antonin Scalia and Clarence Thomas, its most well-known adherents. Originalism’s proponents tend to view it as the One True Method for reading the national charter, an antidote to the heady, freewheeling liberal activism of Earl Warren and his brethren in the 1950s and 1960s.

The ultimate impact of the Fifth Circuit’s decision in this particular case remains to be seen: The Supreme Court has aggressively struck down lower-court decisions that make it easier to sue cops and prison officials for civil rights violations. The justices already ordered the Fifth Circuit to reconsider this case once before; they may yet do so again. But the sharp fissures among self-professed originalists suggests that liberals may yet be able to secure a few victories from time to time in the Roberts era.

The immediate cause of the rift in this case is a legal doctrine known as qualified immunity. The judge-made rule protects civil servants from most lawsuits brought under Section 1983, the great federal mechanism that otherwise allows Americans to sue state and local officials who violate their federal constitutional rights. In practical terms, qualified immunity is most often invoked to block civil rights lawsuits against police officers and prison guards. Its defenders describe it as a necessary protection for government officials against the onerous burden of frivolous litigation—that is, anything outside demonstrable instances in which “clearly established law” has been violated.

Qualified immunity is currently under attack from multiple sides: from members of the judiciary who find it unworkable and unjust, from legal scholars who question both its legitimacy as precedent and its efficacy as policy, and from activists and civil rights lawyers who view it as an intimidating barrier to accountability. Justices Clarence Thomas and Sonia Sotomayor have both raised concerns about qualified immunity in the last two years. Earlier this week, Massachusetts Senator Elizabeth Warren called for reforms to the doctrine in her criminal-justice platform.

There are four disputes in the Fifth Circuit’s case. The central one is about the facts at hand. Both sides agree that Ryan Cole, then a 17-year-old, had a gun and felt suicidal when two police officers approached him in 2010. Cole says that he had the gun pressed against his own head when Officers Michael Hunter and Martin Cassidy fired on him, and that he reflexively shot himself in the head when their bullets struck him. (Cole survived with brain damage and other severe injuries.) Cassidy and Hunter, for their part, say that Cole had moved to point the gun towards them, and that they opened fire in self-defense after issuing a verbal warning.

After the Coles sued the officers, Hunter and Cassidy claimed qualified immunity and moved to dismiss the case. A federal district court rejected that effort because of these factual disputes, setting off a prolonged legal battle that reached the Supreme Court in 2015. From there, the justices sent the case back to the Fifth Circuit for reconsideration in light of Mullenix v. Luna, another troubling police-shooting case in which the high court rejected that circuit’s decision to deny qualified immunity to an officer.

Cole’s case returned to the Fifth Circuit, where the judges heard it en banc—meaning with its entire membership instead of the usual three-judge panel. It was at this point that the second dispute, over what the courts should do with the contradictory versions of events, emerged. For the majority, the answer was simple: Let a jury sort it out before going any further. “The district court must afford Cassidy and Hunter qualified immunity at the earliest point the defense’s applicability is determinable,” Judge Patrick Higgenbotham wrote for the court. “Here, we have not yet reached that point. It will be for a jury to resolve what happened on October 25, 2010.”

Seven of the court’s other judges disagreed. In multiple dissents, they argued that the majority deeply misunderstood the Supreme Court’s precedents and their goals. “The increasingly risky profession of law enforcement cannot put those sworn to ‘serve and protect’ to a Hobson’s choice: place their lives on the line by heroic forbearance or risk their financial security in defense of lawsuits,” Judge Edith Jones wrote. “The Supreme Court has repeatedly stated in plain terms that the purpose of qualified immunity is to prevent precisely this quandary.” Judges, in other words, should dispense with the lawsuit before it comes within ten feet of a jury.

That brings us to the third dispute: over qualified immunity itself. The majority made no sweeping claims about the rule’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.

In that case and this one, he took aim at the practice of dismissing cases without deciding whether the underlying conduct was constitutional. “Last month, for example, the Eleventh Circuit, noting no ‘materially similar case’ (thus no ‘clearly established law’), granted immunity to a police officer who fired at a family’s dog but instead shot a ten-year-old child lying face-down 18 inches from the officer,” Willett wrote this week. “Not only that, the court ‘expressly [took] no position’ as to ‘whether a constitutional violation occurred in the first place.’ Translation: If the same officer tomorrow shoots the same child while aiming at the same dog, he’d receive the same immunity. Ad infinitum.

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.”

The fourth dispute—and perhaps the most interesting one—is over originalism itself. 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.” But even within that project to glean the one true meaning of our founding document, there can be strong differences of opinion.

“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.

It is strange to see a dissent cited with such authority instead of the actual majority opinion in a case that hasn’t been overturned. But when it comes to originalism itself, Scalia and Thomas are the true guiding lights. To that end, Ho and Oldham chide Willett for his apparent apostasy from the one true method of constitutional interpretation. To drive home their point, they quoted lines from recent opinions by Justice Samuel Alito that chastised others for their “halfway originalism” and for “apply[ing] the Constitution’s supposed original meaning only when it suits them.”

Willett, for his part, brushed aside the rebuke in a footnote. “As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham, it is, respectfully, a pyromaniac in a field of straw men,” he replied in his own dissent. “I have not raised originalist concerns with qualified immunity. Nor has my unease with modern immunity practice led me to wage ‘war with the Supreme Court’s qualified-immunity jurisprudence.’”

He also defended his commitment to the overall cause. “I am a fellow dissenter today, notwithstanding my unease, precisely because I believe the Court’s precedent compels it,” he wrote. “In short, I have not urged that qualified immunity be repealed. I have urged that it be rethought. Justice Thomas—no ‘halfway originalist’—has done the same.”

There is a curious tendency among some originalist jurists to treat disagreement on the original meaning as heresy. When Justice Neil Gorsuch parted ways with his fellow conservatives in a Sixth Amendment case this spring, Alito was unstinting. Gorsuch’s plurality opinion for the court, he wrote in dissent, “is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.”

The plurality, Alito went on to write, “tries to suggest a reason by sprinkling its opinion with quotations from venerable sources, but all are far afield” and their opinion “makes no real effort to show that the Sixth Amendment was originally understood to require [a jury trial for supervised release].”

It was the originalist equivalent of Alito telling Gorsuch that his kung-fu is weak. Which judges and justices the strongest connection to the Force is for legal scholars to decide. What’s clearer are the tactical implications for the left. The conservative grip on the Supreme Court means that liberals can expect many more defeats than victories for the foreseeable future. But as long as originalists continue to disagree on what, exactly, amounts to the original public meaning of the Constitution, those who don’t share their beliefs may yet be able to notch a few wins.