I fear I may have become trapped in a time loop, in which every week I am doomed to write the same blog post about how the Supreme Court has delayed consideration of its qualified immunity docket. Back in April, I noted that the Court had scheduled thirteen different qualified immunity cases for its May 15th conference, including three cases explicitly calling for the Court to reconsider the doctrine entirely. Many of these petitions had already been fully briefed and ready for consideration since last October. But the Court then rescheduled the bulk of those cases again, and again, and again.
This morning, the Court kicked the can down the road once more. There were eight different qualified immunity cert petitions that went to conference last Thursday, but none of those petitions were either granted or denied in this morning’s orders. We expect that these petitions will soon be relisted for the Court’s conference this Thursday, June 4th, which means we could get a decision in these cases as soon as Monday, June 8th.
While it’s obviously impossible to know for sure what is motivating the Justices’ continued delay in these cases, I expect that the death of George Floyd, and the continuing outrage and chaos his death has provoked, are weighing heavily on their minds. As my colleague Clark Neily discussed last week, the senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐zero accountability for law enforcement. And while that culture has many complex causes, one of the most significant is qualified immunity. As I noted over the weekend, reporters and commentators of all stripes have recognized the profound connection between George Floyd’s death and the Supreme Court’s lawless rewriting of our primary civil rights statute.
The Justices have a critical opportunity now to take the first steps toward correcting the legal and moral perversities of qualified immunity. If they do so, perhaps it will effect some small measure of redemption for the tragic death of George Floyd, and so many like him. If not, it is difficult to overstate how severe our crisis of confidence in law enforcement will become.