An amusing thing recently happened at the Fifth Circuit.[i] It all started with a qualified immunity (QI) case. Cole v. Carson, No. 14-10228, No. 15-10045 (5th Cir., August 20, 2019) On a petition for rehearing en banc following remand from the Supreme Court, the Fifth Circuit once again affirmed the denial of summary judgment on an excessive force claim. Plaintiff and his parents had filed suit against police officers under 42 U.S.C. § 1983, alleging that the officers violated the Fourth and Fourteenth Amendment during an incident in which the officers shot the kid who was holding a gun near his head as he suddenly emerged from a tree line.
Although the majority decision is patently wrong and, given the remand, appeared to thumb its nose at the Supreme Court, the result of that opinion is not what I care about. Instead, I write about two dissents. Those dissents remind me of an iconic Disney movie and the pertinent question it recalls, “Magic mirror on the wall, who is the fairest one of all?”
I am writing about the three Fifth Circuit judges who got into a war of words over who was the fairest of them all relative to that dogma known as “original public meaning.”[ii] The nerdy dispute (between three recently appointed heavy hitters of the Fed. Soc. persuasion) amuses me. Compare the dissenting opinion[iii] written by Judge Willett with the dissenting opinion[iv] written by Judge Ho and Judge Oldham.
Judge Willett, formerly of Twitter fame, dissented from the majority opinion and suggested that it failed to follow Supreme Court precedent on the issue of qualified immunity. But he made clear that he was uncomfortable with QI and impliedly requested the Supreme Court to take a hard look at it.[v]
Judge Ho and Judge Oldham also argued that the majority opinion was all wet and failed to follow Supreme Court precedent, but they were decidedly unimpressed with Willett’s concern about QI. According to them, a real originalist would attack the underpinnings of the expansive weapon, frequently aimed at cops, that Section 1983 had become rather than whining solely about QI.
This then resulted in delicious dueling footnotes about the purity of these three judges’ bona fides regarding originalism.
As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham, it is, respectfully, a pyromaniac in a field of straw men. I have not raised originalist concerns with qualified immunity. My concerns, repeated today, are doctrinal, procedural, and pragmatic in nature. Nor has my unease with modern immunity practice led me to wage “war with the Supreme Court’s qualified-immunity jurisprudence.” I am a fellow dissenter today, notwithstanding my unease, precisely because I believe the Court’s precedent compels it. In short, I have not urged that qualified immunity be repealed. I have urged that it be rethought. Justice Thomas—no “halfway originalist”—has done the same. Ziglar, 137 S. Ct. at 1872 (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate case, we should reconsider our qualified immunity jurisprudence.”).
Id. at p. 53 n. 19 of the slip opinion.
Ho and Oldham wrote in response:
In a footnote, Judge Willett notes that his criticism of the Supreme Court’s qualified immunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that makes his criticism harder, not easier, to defend. If his concerns are based on practical and not originalist considerations, then he should address them to the Legislature, rather than attack the Supreme Court as “one-sided.” Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)). He also invokes Justice Thomas’s opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But that opinion cites Justice Scalia’s opinion in Crawford-El, which (as we explained above) warns qualified immunity skeptics not to engage in halfway originalism.
Id. at p. 64 n. 3 of the slip opinion.
This exchange between these three extraordinarily smart originalist judges delighted liberals. See Matt Ford, Conservative Judges Are Brawling Over Originalism, The Union Between the Federal Judiciary’s True Believers in the Primacy of Our Founding Documents is Fraying, The New Republic Daily (August 22, 2019). The author of this article ends with a prayer. That is, “as long as originalists continue to disagree on what, exactly, amounts to the original public meaning of the Constitution, those who don’t share their beliefs may yet be able to notch a few wins.” That’s almost as funny as the dueling dissents. As Justice Kagan, a beloved figure of the judicial left, put it at her confirmation hearing, “We are all originalists.”
So, are you, the reader, expecting me to wind up and throw a fast ball explaining what method or methods of constitutional exegesis a judge should follow? Sorry. I have no idea.
If you are interested in such things, you can take your pick from a list that includes intent seeking originalism, public meaning originalism, common law constitutionalism, constitutional pluralism, structural constitutionalism, moral reading constitutionalism and the list goes on. I suspect the best is a combination of all. (But keep Holmes firmly in mind: “The life of the law has not been logic; it has been experience.”[vi])
What I do know is this, the dueling dissents described above and taken together are very, but unintentionally, amusing. Oscar Wilde’s witty and insightful play, The Importance of Being Earnest, comes to mind. Near the very end of the play the following exchange takes place:
Jack: Gwendolen, it is a terrible thing for a man to find out suddenly that all his life he has been speaking nothing but the truth. Can you forgive me?
Gwendolen: I can. For I feel that you are sure to change.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] It may just be me, but heretofore the Fifth Circuit was not known to be particularly amusing. Alas, I digress.
[ii] For a recent, concise and clear explanation of this article of faith, the reader should examine Lawrence B. Solum, Surprising Originalism: The Regula Lecture, CONLAWNOW (May 8, 2018), available at the Social Science Research Network.
[iii] It begins at page 49 of the slip opinion.
[iv] It begins at page 54 of the slip opinion.
[v] Willett’s dissent made the folks at Cato very, very happy, to wit: “Although he would have held that ‘the Supreme Court’s unflinching, increasingly emphatic application of ‘clearly established law’ compel[led] dismissal,’ the bulk of his opinion is devoted to explaining that ‘[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.’” Jay Schweikert, Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity, Cato At Liberty (August 22, 2019).