The Supreme Court's Quiet Assault on Civil Rights

Abstract

This article argues that the Supreme Court is in the process of gutting the most important civil rights statute Congress has ever passed, Section 1983 of the United States Code. Since the 1960s, Section 1983 has been the primary vehicle for enforcing constitutional rights in the United States. The article points out that over the years, the Supreme Court has made it difficult for civil rights plaintiffs to use the statute in a number of ways, and that the Court is presently doing great harm to the statute by its aggressive expansion and imposition of the doctrine of qualified immunity. Under this doctrine, a government official is immune from liability for violating an individual’s constitutional rights unless the plaintiff can show that the right in question was clearly established. To make this showing, a civil rights plaintiff must produce a precedent with facts very close to those in his or her case. The article states that recent scholarship indicates that the qualified immunity doctrine has no basis in the text or history of the statute, and that the policy justifications that have been advanced for the doctrine are very weak. Nevertheless, the Supreme Court has employed the doctrine extremely aggressively causing the dismissal of many civil rights cases. Lower courts have naturally followed the Supreme Court’s lead and, as a result, they are dismissing civil rights cases at an astonishing rate. The article also discusses how the Court has provided procedural advantages to government officials who raise qualified immunity claims.