CIVIL RIGHTS LITIGATION IN THE LOWER COURTS: THE JUSTICE BARRETT EDITION.

Date01 January 2022
AuthorNielson, Aaron L.

INTRODUCTION. 0.146 I. SOME NECESSARY BACKGROUND. 150 A. Causes of Action and Qualified Immunity. 150 B. Qualified Immunity's Discretionary Order-of-Operations. 152 C. Justice Barrett's Civil Rights Views. 154 II. GAMING CERTIORARI. 155 A. The Gaming Certiorari Model. 156 B. Limits of Our Model. 163 III. JUSTICE BARRETT AND CIVIL RIGHTS LITIGATION IN THE LOWER COURTS. 164 A. The Dynamic Effect of Justice Barrett's Confirmation. 165 B. Pearson Discretion and Cert-Proofing. 169 CONCLUSION. 170 INTRODUCTION

Justice Amy Comey Barrett's confirmation to the U.S. Supreme Court has the legal world buzzing about changes to come in U.S. law. (1) Conventional wisdom holds that Justice Brett Kavanaugh may be the Court's new "swing justice" and that Chief Justice John Roberts has suffered a loss of power. (2) Accordingly, many scholars and commentators predict that the law will shift on many issues. After all, the theory goes, with "five staunch conservatives and one moderate conservative," it is "much more difficult for Justices Breyer, Sotomayor, and Kagan to be in the majority," which could potentially shut down a path to "progressive change." (3)

This conventional wisdom likely contains some truth. Assuming that Barrett's views will generally be more like Justice Antonin Scalia's, for whom she clerked, than Justice Ruth Bader Ginsburg's, whom she replaced, one should expect doctrine to shift with all else being equal. (4)

But the full impact of Justice Barrett's confirmation is not so easy to predict--and that is true even //'predictions about her approach to cases prove accurate. The American judicial system is dynamic. That is, changes at the top may prompt reactions by lower court judges, (5) whose own life tenure insulates them from the most direct forms of top-down "discipline" or "control" by the Supreme Court. (6) Thus, whatever the new equilibrium Barrett's confirmation creates, that equilibrium presumably will be a product not only of the Supreme Court's new views, but also of the lower courts' responses to those new views.

Our forthcoming article entitled Gaming Certiorari uses game theory to model the relationship between the Supreme Court and the lower courts in an age of certiorari. (7) As Gaming Certiorari explains when the views of lower courts and the Supreme Court diverge, lower court judges may be tempted to use "cert-proofing" tools to prevent Supreme Court review, including issuing unpublished opinions with cursory analysis, fact-bound rationales, or alternative holdings. (8) Perhaps more counterintuitively, our model also suggests that lower court judges may combine those tools with substantive outcomes that in a sense "split the difference" between what the lower court judges want and what a majority on the Supreme Court wants--in other words, substantive and non-substantive aspects of an opinion can be traded off of each other. (9) To be sure, Gaming Certiorari does not definitively claim that lower court judges try to evade review in this way, much less that it is even possible in every case. Instead, the Article attempts to show that it is theoretically possible to cert-proof some decisions and then explores the implications. (10) It also explains why cert-proofing is problematic, with special focus on the harm that it can impose on third parties. (11)

This Article uses our model for a different purpose: to explore what Justice Barrett's confirmation may broadly mean for civil rights litigation in the United States. We focus on this particular context for four reasons:

  1. Because civil rights litigation is often' (2) marked by sharp disagreement, our model may be especially relevant in this context. After all, cert-proofing should be most attractive for issues that judges care most about.

  2. Because Justice Barrett's views likely will be different from Justice Ginsburg's views for a relatively large number of civil rights issues, (13) lower courts have special reason to expect the Supreme Court with Barrett will resolve such cases differently.

  3. Because President Biden will likely appoint many lower court judges, (14) the "gap" between the views of the lower courts and those of the Supreme Court presumably will widen over the next few years for certain types of cases. Thus, to the extent that cert-proofing occurs in the real world, a focus on civil rights litigation may be a good place to find it.

  4. Because civil rights litigation often involves qualified immunity, (15) it carries with it a unique cert-proofing tool. The test for qualified immunity has two steps (was the right violated, and if so, was the right clearly established) (16) which lower courts can apply in a discretionary manner (they can say that even assuming the right exists, it was not clearly established, and thus dismiss the claim, or they can say that the right was not clearly established but then clearly establish it for future cases). (17) This unique tool further complicates the relationship between the lower courts and the Supreme Court. (18)

Our model predicts that Justice Barrett's confirmation will, at the margins, result in some lower court judges--those who do not agree with the views of the new Supreme Court majority--being more tempted to use certproofing tools. Additionally, to the extent that a lower court decision that rules against a civil rights plaintiff but also clearly establishes the law for future plaintiffs is less cert worthy than a decision that rules in favor of the plaintiff, (19) our model also predicts at the margins that judges who disagree with the Supreme Court will be more tempted to issue decisions that deny immunity but that clearly establish the right going forward. By contrast, lower court judges with views more aligned with the new Supreme Court majority's views will also face different incentives, including reduced temptation to use cert-proofing tools. To the extent that our model at least sometimes accurately captures incentives and further that sometimes judges in fact respond to those incentives, the upshot should be that civil rights litigation will change, even without the Supreme Court itself resolving cases differently.

To be clear, we do not wish to overstate our position. Like any model, ours has limitations, even to the extent that our model reflects the real world. Moreover, our predictions still are only at the margins. In most cases, nothing should change. Even so, there is at least some reason to predict that how lower courts decide civil rights cases sometimes may change--which should matter to those who study civil rights in general and qualified immunity in particular.

Part I briefly discuss the basics of civil rights litigation--including qualified immunity--and explores how Justice Barrett's views may diverge from the late Justice Ginsburg's. Part II briefly explains our model from Gaming Certiorari and its limitations. Then, Part III applies our model to civil rights litigation to explore what Justice Barrett's confirmation could mean for lower court decision-making.

  1. SOME NECESSARY BACKGROUND

    To understand what Justice Barrett's confirmation might mean for civil rights litigation in the lower courts, it is necessary to understand at least three things: (i) the basics of civil rights litigation, including qualified immunity; (ii) qualified immunity's discretionary order-of-operations; and (iii) Barrett's substantive views--to the extent anyone knows them.

    1. CAUSES OF ACTION AND QUALIFIED IMMUNITY

      Civil rights litigation is the subject of a great deal of scholarship. Yet, what falls within the term "civil rights" is complicated. Every aspect of the law can affect individuals (20)--from contracts to evidence to property to securities regulation. This Article uses the term "civil rights" to refer to constitutional rights enforceable under 42 U.S.C. [section] 1983 (for state officers) (21) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (for federal officers). (22) Although this definition is underinclusive, other scholars use it (23) and it works here for illustrative purposes.

      Section 1983 and Bivens are the "backbone of modern civil rights litigation" because they allow individuals to seek damages. (24) When government officials violate an individual's federal constitutional rights, that individual sometimes can sue those officials in their individual capacities for monetary relief, which compensates the injured person and creates disincentives for officials to violate rights more generally. (25) Although aspects of [section] 1983 and Bivens causes of action are debated--Bivens, for example, is an implied cause of action, (26) and the Supreme Court has arguably improperly expanded [section] 1983's scope in some ways (27) while arguably wrongly limiting it in others (28)--they are nonetheless relatively common paths to federal court. (29)

      Both [section] 1983 and Bivens are also subject to a qualified immunity defense. (30) Because of qualified immunity, a plaintiff seeking damages must prove not only that the official violated a constitutional right, but also that the right was "clearly established" at the time of the violation. (31) To be clearly established, "existing law must have placed the constitutionality of the officer's conduct 'beyond debate'" such that "all but the plainly incompetent or those who knowingly violate the law" are immune. (32) Thus, "[i]t is not enough that the rule is suggested by then-existing precedent," but instead "precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply" which typically requires either '"controlling authority' or 'a robust consensus of cases of persuasive authority.'" (33) Due to this high standard, "violations of federal civil rights regularly go without a federal remedy." (34)

    2. QUALIFIED IMMUNITY'S DISCRETIONARY ORDER-OF-OPERATIONS

      Since 2009, qualified immunity has also had an unusual...

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