0 | INTRODUCTION
These cases present the spectacle of the judiciary exposing virtually all other government officials to the threat of personal liability, while carefully maintaining immunity for judges.6 The appearance of institutional bias and self-protection is only heightened by the exception carved by the Court to the rule of qualified immunity for executive officers: absolute immunity has been preserved for those officers whose "special functions" require full protection from liability, and the touchstone for this determination appears to be the similarity or proximity of certain executive functions to traditional judicial functions.7 The inference that the Justices have been influenced by unseemly self-interest has elicited cynical asides from both commentators and jurists.8 The special treatment afforded judges who act intentionally to deprive individuals of their constitutional rights deserves fuller and more serious consideration.
Despite the decisive nature of the recent rulings, the law of official immunity might be subject to significant changes in the future. Some of the issues apparently settled authoritatively today have been decided differently in the past. For a number of years, it appeared that no state official could be absolutely immune from liability under section 1983 of the Civil Rights Act.9 In another period, many executive officials enjoyed virtually the same absolute immunity as is now enjoyed by judges.10 At each turn, the justifications have been as serious and as emphatically propounded as the reasons now given for the Court's present position.
The theme of the following discussion is that the weighty policies asserted by the Court in support of absolute judicial immunity do not justify the result, but that the alternative explanation of institutional self-interest does not fully explain the special status accorded the judicial function either. The significance of the Court's position on official immunity can be found if the case law is viewed, as Thurman Arnold suggested, as an important set of social symbols whose function is "not so much to guide society, as to comfort it."11 The case law illuminates less about the social policies asserted for judicial immunity or the self-protective instincts of judges than about the persistence and importance of the idea of sovereignty.
If the symbolic objectives underlying the special status of the judicial function are forthrightly examined, that status will be understood to be unnecessary and destructive. The next shift in the case law should be to qualify judicial immunity in civil rights cases.
Footnotes
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this passage in order to protect yourself from judges/lawyers/organizations who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
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