There’s so much to say here it becomes hard to say it. You don’t know where to begin. In addition, I don’t think I can do the subject justice in one post, or even a blog post at all. I have an impulse to get a few things off my chest about it, though. That often doesn’t result in the best writing, but for today at least that’s a chance I’m willing to take.
At the most basic level, the Connick case proves once again that the United States Supreme Court has become thoroughly dysfunctional. The problems run very, very deep.
We have too many lawyers, they say. Too many lawsuits. This has been a mantra for decades. But the real “litigation explosion” has been criminal prosecutions, which overwhelmingly end in convictions and imprisonment. And even when they don’t, they result in ruined lives. This has been incredibly and often gratuitously destructive to families, communities, to the nation as a whole. There is a prison “industry”, for Chrissakes.
There couldn’t be more fertile ground for government violation of constitutional/civil rights than a criminal prosecution. The Bill of Rights is a paean to the individual’s options of redress against oppressive government conduct and specifically concerns criminal prosecutions in the 4th, 5th and 6th amendments. The founders were thus obviously aware of the potentially abusive nature of government criminal prosecutions. For this reason, it is in the very warp and woof of the United States’ blueprint that wrongful criminal prosecutions and convictions are foreseeable and must be redressable. Title 42 U.S.C. 1983 is a federal statute that specifically provides for such individual redress, and it didn’t come out of nowhere, even though it was passed in the wake of the Civil War and wasn’t used much until the middle of the 20th century.
The history of that statute since that time is a sad story of betrayal by federal judges of their obligation of fidelity to the constitution and the law. This betrayal has been especially egregious in the Supreme Court. The Connick case is just the latest installment.
It began with an obscure ruling from 1951, the case of Tenney v. Brandhove, 341 US 367. There the Supreme Court held that despite its plain language to the contrary, that is: “Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress..”
section 1983 did no such thing. Common law “immunities” applied, meaning that some state officials were “immune” from suit. Such as, first off…..judges. Surprise, surprise.
The watershed came in the mid 1970′s. Basically by the end of a series of cases culminating in Imbler v. Pachtman, 424 US 409 it had been determined that pretty much all state officials – that is, anyone who might conceivably, under color of law, “…subject, or cause to be subjected, any citizen of the United States or other person” within their jurisdiction to the deprivation of rights, privileges, etc. – were immune from suit. The only question was whether such immunity was “qualified”, in which case maybe a suit could proceed (but almost always gets dismissed eventually anyway); or “absolute”, meaning that you couldn’t proceed at all.
Imbler dealt with prosecutors and held that they were “absolutely” immune.
So for a minute, just think about the breathtakingly disingenuous state of the law: a statute, still on the books, provides by its terms for redress in the form of lawsuits against public officials who violate the constitutional rights of individuals, yet all of those same public officials are immune from such lawsuits by judicial decree. Let that sink in.
So by the middle of the first decade of the 21st century the situation is this: we have millions upon millions of arrests every year. We have millions of felony convictions and imprisonments. We have even more millions of misdemeanor convictions. I have cited the statistics before here, right out of the US Bureau of Justice Department.
How many annual successful civil rights actions arise out of all this domestic “kinetic” activity? At most 3,000, based on this and other BJS statistics.
It is axiomatic that violations of constitutional rights are likely in the course of a criminal prosecution, including simple arrests, because so many constitutional provisions apply. Yet – and this is prior to Connick, the latest installment – the number of recognized and allowed annual section 1983 claims is running at less than one-half of one percent of the annual felony convictions, and an infinitesimally small percentage of annual arrests.
As I said before in another post, this is effectively zero. 42 U.S.C. 1983 was killed by the SCOTUS. And that was before Connick.
One reason it is so disturbing that the SCOTUS looked at the Connick case at all is that there are many, many applications to the SCOTUS every year and only a tiny percentage of those are ever heard, something like 80 cases out of 10,000 or more filed. The winnowing process is understandably prominent and quite severe. Ostensibly, SCOTUS looks closely only at cases that present “important” and unsettled questions of constitutional law, usually meaning at least a couple of things: first, that the circuit courts (the intermediate federal appellate courts) are split on the question; and second, that deciding and clarifying the question of constitutional law is somehow socially important, or maybe for some reason it has gotten a lot of attention in academic circles or in the Washington think tank establishment, or it has received some equivalent attention that elevates the case or the question such that the SCOTUS thinks it should take a look at it.
Many of the cases that are filed in the SCOTUS every year – not all 10,000, but still many – meet these criteria. Far more than the court actually takes up. The process by which some get taken and others don’t, which normally involves getting at least four justices to vote in favor, is otherwise mysterious and for the most part random, although to be fair this characterizes the operations of appellate courts generally.
And that is the troubling thing about the Connick case. Its selection was neither mysterious nor random. There are at least four justices on that court who – incredibly – do not believe the near total evisceration of 42 U.S.C. 1983 by that same court has been sufficient. One wonders if they will be happy when the number of such lawsuits reaches zero absolutely or if they will quake in fear that the mere presence of the statute on the books will portend the great “floodgates” that never, ever appeared in the century and a half the statute was there in the first place, although the floodgates have been wide open at the other end.
But they apparently don’t mind being overwhelmed by cases the government brings with its police and prosecutors bent on career advancement more than anything else; their fear is reserved exclusively for the unwashed hordes banging down the courthouse door. That fear has become reflexive, utterly irrational and contrary to law. And on the face of it mean-spirited and flagrantly contemptuous of the rights, and even the dignity of individuals.
I marvel at the sheer fatuousness of the court and its jurisprudence, and its decision to even take the Connick case in the first place. The behavior of the Supreme Court is at this point reminiscent of nothing so much as the Dickensian caricature of the French nobility in the days leading up to the bloody French revolution. And indeed as reports from the very oral argument of the case reveal:
“To read the transcript of the argument in this case, is to confront the indifference and cynicism that so often characterizes our society’s response to gross and inhumane constitutional violations in the criminal justice system. A man’s life was stolen because of the unconstitutional conduct of state actors. And still Justice Scalia’s most biting and obnoxious remarks disparaging Thompson’s arguments were greeted by the assembled spectators with laughter.” (H/T Antonin Pribetic @ Trial Warrior)
Our oh-so-bright robed wunderkind have forgotten, or never even had an appreciation for, lessons of history that were poignantly expressed in the classic literature of our own language so long ago, literature which most school children – or at least high schoolers – are familiar with and apparently understand better than they do, because almost anyone does. Except for psychopaths and sociopaths I guess. Is this the company our Supreme Court Justices are keeping?
These are the kinds of questions the Connick case raises, and I’m sorry to say it. But I’m also mad. And fed up.