Feces and A Properly Stated Rule

Most people, understandably, see the Supreme Court of the United States as the court of last resort. After all, there is no higher court in the land, so where else would one go to grieve a bad ruling? Certainly a bad ruling is bad and, by dint of being bad, should be reversed. Isn’t that what the law is for, what the Supreme Court is for? Well, not quite, according to its rules.

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

  • (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
  • (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
  • (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

The last phrase of this rule was the part that gave Justice Sam Alito pause in his concurring opinion in Taylor v. Riojas.

The Court now reverses the affirmance of summary judgment on the cell-conditions claim. Viewing the evidence in the summary judgment record in the light most favorable to petitioner, the Court holds that a reasonable corrections officer would have known that it was  unconstitutional to confine petitioner under the conditions alleged. That question, which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review. As stated in our Rules, “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of . . . the misapplication of a properly stated rule of law,” this Court’s Rule 10. That is precisely the situation here. The Court does not dispute that the Fifth Circuit applied all the correct legal standards, but the Court simply disagrees with the Fifth Circuit’s application of those tests to the facts in a particular record.

What makes this even more spectacularly surprising is that it was a qualified immunity case, where the Court hasn’t merely been reluctant to concern itself with correction but has studiously avoided any case involving reversal of a lower court grant.

Since the Supreme Court invented this “clearly established law” standard in 1982, it has issued 32 qualified immunity decisions, and only twice found that a defendant’s conduct actually violated “clearly established law” (and these two cases were decided nearly two decades ago). Thus, the practical effect of the Court’s decisions has been to make “clearly established law” more and more difficult for plaintiffs to show; today, many lower courts effectively require plaintiffs to find a prior case with nearly identical facts before they will hold that the law was clearly established.

Yet, as Cato’s Jay Schweikert notes, for the first time in 16 years, the Supreme Court not only took on such a case, but “corrected” the Fifth Circuit’s outrageous holding that “correctly” stated the rule of law and then applied it to the facts in the most absurdly irrational way.

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment. But, based on its assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court concluded that the prison officials responsible for Taylor’s confinement did not have “‘fair warning’ that their specific acts were unconstitutional.”

The facts are more disgusting than the per curiam opinion language suggests.

The first cell was covered, nearly floor to ceiling, in “‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “‘packed inside the water faucet.’” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

Who, exactly, would require a prior holding, precisely on point, that it went beyond the pale to hold a prisoner under these conditions for “only six days”? Not the guards who did this, and knew exactly what they were doing and intended every filthy, disgusting bit of it. They knew. They just didn’t care and figured they would get away with it because they’re the screws.

But the three judges on the Fifth Circuit panel, Priscilla Richman Owen. Edith Hollan Jones and the author of the circuit opinion, Jerry E. Smith, held that while it was an Eighth Amendment Cruel and Unusual Punishment Clause violation, it was not “clearly established” and so there was insufficient notice that they were doing something unconstitutional. This was too much for even the Supreme Court to stomach.

But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.

Of course no reasonable guard could have thought that, but three circuit court judges did. That was enough to push the Supreme Court over the edge of misbegotten qualified immunity theory into correcting a horrifically bad decision.

Justice Alito’s complaint wasn’t wrong, but was somewhat disingenuous given that the Court does correction when it wants to, even if almost never when it isn’t in support of law enforcement. But at least he concurred. Justice Clarence Thomas dissented. Was Taylor’s suffering not cruel enough to overcome a properly stated rule?

9 thoughts on “Feces and A Properly Stated Rule

  1. grberry

    I don’t think Thomas believes as you asked “Was Taylor’s suffering not cruel enough to overcome a properly stated rule?” Instead he believes the rule is wrong.

    Normally when Thomas dissents he writes an opinion explaining his dissent. Here, he has no dissenting opinion. His reasoning is often significantly askew to the rest of the court.

    For this topic, he has a history of disagreeing with the existing qualified immunity doctrine. See, for example, his dissent on 15 June 2020 about whether or not to grant certiori in Thomas vs. Baxter. He wants the court to reconsider the qualified immunity precedents.

    In that opinion he wrote “I have previously expressed my doubts about our qualified immunity jurisprudence. See Ziglar v. Abbasi, 582 U.S. ____, ___ – ___ (2017) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 2-6). Because our $1983 qualified immunity doctrine appears to stray from the statuatory text, I would grant this petition.”

  2. Steve King

    One of these days I would like to see Dr. Sowell or someone like him appointed to the Supreme Court.

    Qualified immunity should not exist. You should be immune if you have performed your duty within the law, not outside of it. There needs to be accountability and responsibility for everyone.

    To paraphrase a Drill Sergeant I once had: “When you put on a uniform you are saying that you are not some ordinary [email protected]@#$%####. You are saying that you are something more responsible.” The same for taking an oath of office.

    1. SHG Post author

      Remember how I reminded you about this being a law blog and all? This was one of those comments you would have done better not to make at a law blog.

  3. buncyblawger

    <1% — the no. of petitions for writs of cert which get heard in SCOTUS. No matter how meritorious.

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