Wall Street Journal Article Takes Aim at Qualified Immunity

An article published Thursday in The Wall Street Journal’s Life and Arts section centers its sights on qualified immunity, criticizing the doctrine for making government “unaccountability the norm and accountability the hard-won exception.” The article comes from ACLU legal directors Scott Michelman and David Cole. 

The ACLU and Cato Institute regularly collaborate on cross-ideological amicus briefs challenging the qualified immunity doctrine before the Supreme Court. One such case, Baxter v. Bracey, is highlighted in the article. Michelman and Cole speculate the Supreme Court may have denied certiorari in Baxter and other cases due to the emergence of potential legislative solutions.

It also challenges a common argument advanced by the doctrine’s supporters: that abolishing qualified immunity would make it difficult for public officials to do their jobs out of fear of being sued. The reality is that the government pays the bill for errant employees in 99.98% of cases. By preventing these cases from going forward, qualified immunity actually shields the government from the costs of violating people’s constitutional rights – and eliminates the incentive to implement systemic changes that would prevent those violations from occurring.

Wall Street Journal subscribers can read the article here.