Tagged: Section 1983

George W. Bush’s “administration [ ] transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.”

Source: Charlie Savage. “Appeals Court Pushed to Right By Bush Choices.” New York Times. October 28, 2009. http://www.nytimes.com/2008/10/29/us/29judges.html?pagwanted=all&_r=0.

“As early as 1806, the Supreme Court in Wise v. Withers, [7 U.S. (3 Cranch) 331 (1806)] had recognized a right to sue a judge for exercising authority beyond the jurisdiction authorized by statute. In 1869, one year after passage of the Fourteenth Amendment and long before due process had assumed its modern contours, the Supreme Court made its first effort to define the limits imposed on state judges. The Court held that state judges possessing general powers were not liable ‘unless perhaps when the acts … are done maliciously or corruptly.’ Then in 1872, one year after the civil rights laws were passed, the Supreme Court overruled its earlier dictum and announced that judges would not be liable even for malicious or corrupt acts.”

Not surprising that the majority all-white Court changed its mind on judicial immunity a year after the Ku Klux Klan Act of 1871 was passed….

The article also goes on to state:

One fact is clear about the 1866 Act: it unquestionably had abolished judicial immunity from criminal prosecution, in effect overruling the precedent in Floyd. Partly because of this feature, President Andrew Johnson had vetoed the bill, and Congress promptly had overridden the veto amid indignant cries about the tyranny of local Southern officials. During the vote to override, one representative had sharply responded to the President’s concern:

I answer it is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded. … And if an officer shall intentionally deprive a citizen of a right, knowing him to be entitled to it, then he is guilty of a willful wrong which deserves punishment.

Others declaimed that immunity for any state official must be abolished because immunity “is the very doctrine out of which the rebellion was hatched.”

Source: Robert Craig Waters, “Judicial Immunity v. Due Process: When Should A Judge Be Subject To A Suit?” Cato Journal, Vol.7, No.2 (Fall 1987). pg. 466-467.