In an Extraordinary Opinion, a Federal Judge Delivers a Scathing Warning About the Supreme Court

It takes a lot of courage for a lower court judge to criticize the Supreme Court, but Judge Carlton Reeves has long felt a responsibility to speak candidly to the public about threats to their civil rights. In an opinion on Monday, he calls for the abolition of qualified immunity—a noxious legal doctrine that insulates violent and corrupt government officials, especially law enforcement, from accountability. He embedded this call to action in a broader critique of the Supreme Court’s selective application of precedent—with a focus on the cavalier reversal of Roe v. Wade—as well as its pernicious distrust of democracy. Reeves’ opinion warns all who wish to listen that a broad array of our constitutional liberties are in serious and imminent jeopardy.

A Barack Obama appointee, Reeves sits on a U.S. District Court in Mississippi. His latest opinion was sparked by facts that he sees all too often and has written about before: the egregious violation of a criminal suspect’s constitutional rights as an innocent person wrongly charged with a crime. It began when detective Jacquelyn Thomas of Jackson, Mississippi, accused Desmond Green of murder. The detective’s only evidence was a statement made by Green’s acquaintance, Samuel Jennings—after Jennings was arrested for burglary and grand larceny, and while he was under the influence of meth. Thomas allegedly encouraged Jennings to select Green’s picture out of a photo lineup after he identified someone else as the killer. Allegedly, she also misled the grand jury to secure an indictment, concealing Jennings’ drug abuse as well as the many inconsistencies and inaccuracies in his statement.

Jennings later recanted, admitting that, in his meth-addled state, he’d provided a bogus tip. A judge finally dismissed the charges. By that point, Green had spent 22 months in jail, serving pretrial detention. The facility was violent. The food was moldy. He slept on the floor. His cell was infested with snakes and vermin.

Green then sued Thomas, accusing her of malicious prosecution in violation of the Constitution. Thomas promptly asserted qualified immunity to defeat the lawsuit. This doctrine protects government officials from liability unless they run afoul of “clearly established” law. In other words, there must be an earlier case on the books with similar, “particularized” facts that explicitly bars the official’s actions. If there is no near-identical precedent that unambiguously prohibits those acts, qualified immunity kicks in, the lawsuit is tossed out, and the case never even reaches a jury.

This shield has allowed a repulsive amount of wrongdoing by police and prosecutors to go totally unpunished. Cops are permitted to brutally beat, murder, steal from, and conspire against innocent people because the rights they violate are, ostensibly, not “clearly established.” Courts regularly apply the doctrine when there is a tiny discrepancy between a previous case and the facts at hand as an excuse to let the officer off scot-free. And over the past few decades, SCOTUS itself has expanded qualified immunity to new extremes. The result, as Reeves wrote, is “a perpetuation of racial inequality”: Black Americans experience more violations of their civil rights than any other class, yet qualified immunity denies them a remedy in even the most appalling circumstances.

Here, though, Reeves refused to let the doctrine devour the Constitution. He concluded that there is sufficient on-point precedent to show that Thomas’ malicious prosecution, if proved, violated Green’s “clearly established” rights. So the case may go to trial. That, however, was not the end of his analysis—because, as he pointed out, the concept of qualified immunity is unlawful, unworkable, and indefensible.

The first problem is that judges made up the doctrine as a special favor to other employees of the government. Congress, as Reeves explained, gave individuals the power to sue state officials in federal court through the Ku Klux Klan Act of 1871, enacted after the Civil War so newly freed Black Americans could sue racist and abusive local police. Congress did not establish anything like “qualified immunity” in the statute. Rather, the Supreme Court invented the doctrine in 1967, purporting to protect cops who commit illegal arrests in “good faith,” and imposed it unilaterally on the nation. It then crept, kudzu-like, into other areas of law.

“The People never enshrined qualified immunity in the Constitution,” Reeves wrote. “Our representatives in Congress never put it into the statute or voted for it. No President signed it into law. If anything, it represents a kind of ‘trickle-down’ democratic legitimacy.” In recent years, the Supreme Court has not bothered to account for qualified immunity’s origins, but rather maintains it on the basis of respect for precedent: It exists already, so it might as well keep existing.

And here is where Reeves goes for the jugular: The Supreme Court has tossed out far more defensible and entrenched precedent on the basis of far feebler excuses. How can it justify keeping qualified immunity around while recklessly destabilizing vast areas of settled law it doesn’t like?

SCOTUS has suggested that law enforcement officers have come to rely on qualified immunity, creating a “reliance interest” that counsels keeping the doctrine. But when the court overruled Roe in 2022’s Dobbs decision, Reeves wrote, the majority rejected that “kind of vague, ‘generalized assertion about the national psyche.’ ” Instead, Reeves wrote, the justices “thought voters should resolve reliance interests, not judges.” He then repurposed Dobbs’ most notorious lines: “After all, just like women, law enforcement officers and their unions ‘are not without electoral or political power.’ ” Law enforcement officers, like women, can “affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” If courts can’t protect women’s bodily autonomy, he asked, why should they do the bidding of police unions?

Dobbs, Reeves went on, “also reflects the Supreme Court’s desire to remove itself from the center of a hot-button issue and return it to the electoral process.” Police reform, like abortion, is undoubtedly a “controversy on issues of life and death, where passions run high.” Yet even after Dobbs, SCOTUS “has not yet seen fit to return this contested issue to the democratic process,” Reeves opined. “It is not clear why.” After all, “the current court is certainly not shy about overturning precedent.” And the list of cases on the chopping block “seems to grow every year.” Teachers’ unions and racial minorities have watched the court gut precedent that shielded them for decades. Why should cops get favored treatment? Merely because of SCOTUS’ “policy-based choice” to “privilege government officials over all others.”

Reeves has a complex history with reproductive rights. He was the district court judge who struck down the Mississippi law that the Supreme Court later upheld in Dobbs when overruling Roe. His emphatic opinion famously accused the Mississippi Legislature of misogynistic “gaslighting,” analogizing the state’s defiance of Roe to its earlier defiance of Brown v. Board of Education. It’s evident that, to Reeves, the Supreme Court’s embrace of democracy in Dobbs rings hollow alongside its rejection of democracy in so many other areas, including the Second Amendment. (In a pointed footnote, he called out the court for treating the right to bear arms as a uniquely absolute, unlimited freedom—while greenlighting the erosion of other liberties that it values less.)

The judge folds together these rather scathing observations by reminding us that the Supreme Court’s creation and expansion of qualified immunity is, itself, a rejection of democracy. The Framers, after all, envisioned jury trials as a bulwark of democratic power, a check by “We the People” on government abuse. It was, Reeves wrote, designed to be exercised “one dispute at a time, day after day, rather than on fixed election days.” Unfortunately, an arrogant “judicial supremacy has too-often deprived the people of their proper role” in deciding whether public officials should be liable for their unconstitutional acts. Qualified immunity “reflects a deep distrust of ordinary people” in direct conflict with the Constitution. “In the same way we trust the collective judgment of voters in elections, we must trust the judgment of jurors in deciding cases,” Reeves wrote. They can resolve “tensions and contradictions case by case, as the evidence dictates.” All judges must do “is tell jurors the truth.”

Will the Supreme Court listen? The conservative justices seem disinclined to reevaluate their cynical, selective concerns about precedent and democracy. But with this opinion, Reeves has given the public yet another reason to question these justices’ increasingly dubious wisdom and integrity. Just as importantly, other judges may take note of Monday’s critique and follow Reeves’ suggestion of narrowing qualified immunity wherever possible. They might even join him in calling for its eradication, forcing SCOTUS to either stand by its handiwork or reevaluate it. The judge’s simple suggestion boils down to this: If we’re going to do democracy, let’s actually do democracy—not whatever partisan, half-baked substitute this Supreme Court is trying to pass off to the people.