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. 

As Justice Adelman explains:

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).

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.

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.

Related Resources:

  • What Did Chemerinsky Think of the SCOTUS 2017 Term? (FindLaw’s Supreme Court Blog)
  • Supreme Court Refuses Challenge to Mississippi’s Anti-LGBT Law (FindLaw’s Supreme Court Blog)
  • FindLaw Strategist’s 10 Best Writing Tips From 2017 (FindLaw’s Strategist)

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