A new “Kennedy doctrine”

By Lyle Denniston
on Jun 4, 2011 at 2:14 pm

Analysis

Speaking only for himself — at least for now, Supreme Court Justice Anthony M. Kennedy has floated the idea that members of the President’s Cabinet may be protected by an even greater legal immunity shield than has existed, especially when they are reacting to terrorism threats.  It could mean that, even if a Cabinet officer has been found explicitly to have violated someone’s constitutional or statutory rights in one, or perhaps even a few, federal court rulings, that may not be enough to lead to a finding of wrongdoing. 

Kennedy put forward that concept in his separate opinion last Tuesday in a case involving former U.S. Attorney General John D. Ashcroft (Ashcroft v. al-Kidd, 10-98).  It drew no other votes in support.  Still, it may be fair to suggest that, if a Cabinet officer seeks to take advantage of that in the future, Kennedy might well be able to turn it into a majority view.  At least four of his colleagues seem quite sympathetic to immunity claims.

Technically speaking, what Kennedy has spelled out is a very strict view of when a constitutional right is “clearly establilshed,” and so its violation by a government official can lead to personal responsibility, and even liability in the form of money damages.  Although doctrines of legal immunity apply to government officers at all levels, down to the local police force, Kennedy’s version would be reserved for officials who have national authority, reaching many and perhaps all jurisdictions across the country.   He also intimated that it might be limited to situations when a Cabinet officer is engaging in some form of “national security operation.”

Under long-standing Supreme Court precedent, a federal, state or local officer is immune from claims for money damages unless one of his actions is shown to be a violation of an individual’s right, and — a separate requirement — unless that right is proved to have existed at the time the official acted.   The theory behind this form of “qualified immunity” is that officials need to be put on notice when they are acting outside the law, and should not be interrupted in their official work to fend off a court case based on a brand-new theory of wrongdoing.

Kennedy’s new approach, perhaps appropriately called a new “doctrine,” deals with the second requirement of this immunity formula, requiring proof that the right was “clearly established” at the time of the challenged official’s action.

The nub of Kennedy’s concern, at least in the Ashcroft case, was summed up in these two concluding sentences: “National security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional.  The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities.”

Kennedy began that section of his concurring opinion (Part II) by saying that the fact that the U.S. attorney general “holds a high office in the government must inform what law is clearly established for the purposes of this case.”  But he went on from that point, and seemed to be suggesting a general rule, not just one for evaluating what Ashcroft was claimed to have done to Abdullah al-Kidd, a terrorism suspect arrested and detained for 16 days under a “material-witness arrest” warrant.

Cabinet and other “high office” holders, Kennedy said, have duties of their national position that are implemented “in many jurisdictions throughout the country.”   That authority might be questioned in some courts, but approved in others, the opinion noted.  When faced with such inconsistent court declarations, Kennedy added, a “national officeholder should be given some deference for qualified immunity purposes.”  That leeway, he said, in an uncertain qualification, might not exist if the officer takes an action in a place where the action has alreadybeen found illegal.

Even with that qualification, however, Kennedy stressed the breadth of his holding:  “A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States.  And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule.”

It would go too far to deter a national officer from doing his or her job, Kennedy added, to subject them “to personal liability whenever they confronted disagreement among appellate courts.”   Again, he said, courts should be cautious in this respect “particularly in the area of national security.”

One of the risks, Kennedy said further, is that “too expansive a view of ‘clearly established law’ could risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review.”

The Ninth Circuit Court — the particular target of Kennedy’s musings in the al-Kidd case — gave him an example of what he was concerned about.  That Circuit Court, he said, “appears to have reasoned” that a federal judge in New York had authority to “establish a legal rule binding on the Attorney General” nationwide — and for an actions taken in Boise, Idaho, and near Washington, D.C.

There are indications,  in the main opinion in the Ashcroft case, that four Justices who, with Kennedy, made up the majority, might well join him in implementing his new “doctrine” of immunity in some future case.  The main opinion, written by Justice Antonin Scalia, displayed a distinct sympathy for claims of immunity by reaching out to decide a constitutional question that it did not need to resolve, in order to cement the finding of immunity.

The Court, as three dissenters pointed out, could have decided the case simply by concluding that Abdullah al-Kidd’s constitutional claim involved a right that was not clearly established at the time of his arrest and detention, in 2003.  All members of the Court who took part (Justice Kagan was recused) agreed on that point.

But the Scalia majority opinion said that the Ninth Circuit was wrong in the way it decided al-Kidd’s constitutional challenge on the merits, and it was necessary to correct that to ensure that lower courts “do not insulate constitutional decisions at the frontiers of the law from our review.”   (Al-Kidd’s claim was that it violated the Fourth Amendment for the government to use a law designed to ensure that a witness shows up to testify at trial as a mechanism for arresting and detaining that individual, with no intention of calling him as a witness.  The Court said such a “pretextual” use of the material-witness law did not violate the Fourth Amendment.)

In addition to Kennedy and Scalia, that conclusion had the support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Clarence Thomas.   Justices Ruth Bader Ginsburg and Sonia Sotomayor, in a pair of partial concurrences  joned by each other and by Justice Stephen G. Breyer, argued that the majority should not have reached out to decide what they said was a difficult constitutional issue.