A FORMER PUBLIC DEFENDER JOINS THE SUPREME COURT.

• Author: Root, Damon
• Position: LAW

LIBERTARIANS CAN ANTICIPATE many future disagreements with the U.S. Supreme Court's newest confirmed justice, Ketanji Brown Jackson. But Jackson's record on criminal justice issues offers some cause for optimism.

Consider Patterson v. United States, a 2013 case involving the arrest of an Occupy D.C. protester, Anthony Michael Patterson, for using profanity in a public park. Officers told Patterson to stop cursing at Tea Party activists. When Patterson refused, he was arrested for disorderly conduct. The charges against him were later dropped.

Patterson sued the officers over his bogus arrest, which was triggered by nothing more than the lawful exercise of his First Amendment rights in a public place. The officers responded by invoking qualified immunity, a controversial doctrine that routinely shields state officials from lawsuits alleging constitutional violations. Jackson, then a judge on the U.S. District Court for the District of Columbia, practically scoffed at the officers' arguments and denied them qualified immunity. "The right to be free from a retaliatory arrest in the absence of probable cause is clearly established in this jurisdiction," she ruled. "A police officer is unquestionably on notice that arresting a speaker solely based on the content of his speech and without probable cause to believe that he has committed a crime is a violation of the First Amendment."

This was not necessarily an open-and-shut case. Other federal judges have granted qualified immunity in cases...