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  • Byron Wellman

Restore Balance, Legitimacy and Transparency to the U.S. Supreme Court

Sen. McLeod on the state house steps.

Under Donald Trump, our Supreme Court has become greatly politicized and even further stacked against the interests of everyday people. One of the lesser known abuses the Court has promoted is the issue of qualified immunity.

This doctrine provides legal immunity to government officials, protecting them from lawsuits alleging wrongdoing. On its face, qualified immunity appears to limit harassment and prevent distractions. It can do these things, but it also protects officials when they use power irresponsibly, inappropriately, abusively or dangerously. Simply put, qualified immunity protects officials who attempt to justify their actions as reasonable, despite having clearly violated someone’s constitutional rights.

Interestingly, qualified immunity was not enacted by Congress and it does not derive from the Constitution. Instead, it was invented by our own Supreme Court.

This should be deeply concerning to all of us. In the last half century, we’ve repeatedly seen qualified immunity lessen or eliminate punishment for officials — especially police who violate our citizens’ civil liberties. Our courts are supposed to protect the rights of all Americans, not just government officials.

Petitions to reconsider qualified immunity have drawn support from across the aisle.

Last month, the Court had the chance to rein in the damage done by qualified immunity but it decided not to grant review in I.B. v. Woodard, allowing the lower court decision to stand. The lower court used the doctrine of qualified immunity to dismiss a lawsuit brought by the parents of a 4-year-old Colorado girl who was strip-searched by a social worker. When the parents asked the social worker why she had stripped-searched their child, the social worker lied and said it never happened. The parents then sued and found that the social worker had taken pictures of their child, naked, during the strip search. But qualified immunity kept the child from getting any justice for such a clear violation of her right to privacy.

The more we dig into qualified immunity, the more we learn that these types of cases are all too common. This highly flawed doctrine needs a deeper, more thorough review. But the current members of the Supreme Court have dug in their heels, choosing instead to protect government officials above the people they serve.

Several of the presidential candidates have offered plans that would restore balance, legitimacy, and transparency to the Court. Those plans will carry considerable weight as voters weigh their options and decide which candidate best represents their interests.

As we prepare for 2020, one thing is certain. It’s time for us to have a meaningful discussion about ways to reform the Supreme Court to ensure that it steers clear of partisan politics and recommits itself to protecting the rights and freedoms of all Americans.

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