God. Got. Game.
Judge Don Willett pinned the image above to the top of his Twitter feed a few days before he was sworn in as a member of the U.S. Fifth Circuit Court of Appeals in New Orleans. Once a very popular figure on Twitter, Willett wisely retired from social media after his appointment to the federal bench in January 2018.
Don Willett is in the news this week for a very good reason. He has written a controversial opinion that has the legal profession talking and arguing from coast to coast. Damon Root at Reason writes…
Since joining the U.S. Court of Appeals for the 5th Circuit in 2017, Judge Don Willett has emerged as a prominent critic of qualified immunity, a controversial legal doctrine that generally shields police officers and other government officials from being sued when they violate citizens’ constitutional rights. “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior,” Willett observed in the 2018 case of Zadeh v. Robinson. “I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence.”
Willett spoke out against qualified immunity once again earlier this week. Writing in dissent on Tuesday in Cole v. Hunter, he faulted the doctrine for formalizing “a rights-remedies gap through which untold constitutional violations slip unchecked.” As Willett put it, “the real-world functioning of modern immunity practice—essentially ‘heads government wins, tails plaintiffs lose’—leaves many victims violated but not vindicated.” Willett made it clear that he thinks the Supreme Court should revisit the doctrine and set things straight.
Section 1983 meets Catch-22. … Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. … An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. …
Qualified immunity aims to balance competing policy goals. And I concede it enjoys special favor at the Supreme Court, which seems untroubled by any one-sidedness. Even so, I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence and its “real world implementation.” [Footnotes and citations omitted.]
Don Willett has been on Trump’s list for the Supreme Court all along. I believe he will eventually make it to SCOTUS, for all of our benefit.
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