The Case Against the Supreme Court by Erwin Chemerinsky

Author:Erwin Chemerinsky
Language: eng
Format: mobi, epub
Publisher: Penguin Group, USA
Published: 2014-09-08T04:00:00+00:00

Al-Kidd was arrested as a material witness, not for committing any crime, and there was never any reason to believe that he would be a witness at all. Thus there was no probable cause for the arrest, and his seizure violated the Fourth Amendment.

Second, Justice Scalia said that former attorney general John Ashcroft was protected by qualified immunity because there were no cases on point indicating that his conduct was unconstitutional. But Hope v. Pelzer had expressly held that there need not be a case on point to overcome qualified immunity. Surely it does not take a case on point for the attorney general of the United States to know that it is unconstitutional to detain a person as a material witness if there is no desire to use the person as a material witness. It is clearly established law that it violates the Fourth Amendment to detain a person without probable cause, and this is exactly what was done to al-Kidd.

Al-Kidd should have been a simple case for the Supreme Court. But the Court found in favor of Ashcroft and went even further in protecting government officials from liability. Justice Scalia’s majority opinion significantly changed the law of qualified immunity. Writing for the Court, Justice Scalia stated: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Never before had the Supreme Court said that the test is whether “every reasonable official” would have known that the conduct was impermissible. Never before had the Court said that a plaintiff could recover for a constitutional violation only if existing law placed the question “beyond debate.”

This is a standard that is quite different from Hope v. Pelzer’s conclusion that government officials could be held liable to long as they had “fair notice” that their conduct was unconstitutional. It is a legal test that is going to make it extremely difficult to successfully sue government officials when they violate constitutional rights, even if they inflict great injuries. An illustration of this is found in a subsequent, recent decision of the United States Court of Appeals for the Ninth Circuit.

As explained in chapter 2, José Padilla, an American citizen, was apprehended at Chicago’s O’Hare Airport in May 2002 and held as an enemy combatant until January 2006. During this time, he was charged with no crime, indicted by no grand jury, and convicted by no jury. The government claimed the authority to hold an American citizen indefinitely as an enemy combatant.

While being held as an enemy combatant, Padilla was subjected to what was euphemistically called “extreme interrogation.” As the Ninth Circuit explained, Padilla alleged that he was subjected to “extreme isolation; interrogation under threat of torture, deportation and even death; prolonged sleep

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