Qualified Immunity Rap Battles

David and Sarah have Super Tuesday numbers to dive into, oral arguments in Louisiana’s Supreme ...

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David and Sarah have Super Tuesday numbers to dive into, oral arguments in Louisiana’s Supreme Court abortion case, FISA reform, qualified immunity, and is it okay to arrest six-year-olds?

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    CynthiaW

    I, too, was surprised by Ms. Isgur's apparent defense of the qualified immunity doctrine. At the end, it seemed as though she reluctantly conceded that "what we have now" is pretty bad, but was still more invested in the narrative of "how we got here" than in the inadequacy of the status quo.

    In my opinion, the situation is comparable to that of government-employee unions: government employees and elected or appointed officials get together to make sure they can't be touched by the "lower orders."

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    Joseph Horn

    Love the Dispatch and love this podcast. But Sarah is seriously confused when she says that if conservatives react with rage if/when Roberts or other conservative justices vote to uphold June, that it proves they were lying about their commitment to textualism. It proves nothing of the sort. Likewise her comparison of the gun issue for the left and the abortion issue for the right is superficially plausible but only superficially. Roe is a constitutional travesty and so is Casey. It is tied to nothing in the text of the Constitution or our history (unless you count our racist eugenics movement, which should give its cheerleaders pause). By contrast, Heller and McDonald are tied to both explicit guarantees in the Constitution and supported by our history from before we were a country. If the justices rule the wrong way on these, conservatives will be right to be enraged; not because they were lying but because they were lied to. They were told the text and history matter. Upholding egregious decisions like Roe means that all that matters is that progressives and their movement must get what they want. Conservatives care about outcomes precisely because they think the justices are not free to ignore the text and its original public meaning. Ignoring it is what got us here in the first place. So count me among the justly enraged if June goes wrong. Furthermore, I find Sarah’s flippant attitude toward qualified immunity disturbing. It’s as if she believes that “Blame the Warren Court” is a sufficient answer to a family one of whose members was shot dead in his own house after committing no crime and when the police had no good reason to be there. Sorry, the minimum that should happen is a finding if civil liability. I’d also be in favor of criminal negligence penalties being applied in such cases in addition to the civil penalties. But nothing? Impunity? Come on. You cannot be serious. Fixing the Warren Court might be hard, but it’s necessary and way overdue.

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    Kerani

    Interesting commentary, gave me some things to consider regarding the prolife movement. I was glad to see justice/policing reform get space, as I see this as a vital part of retaining - to what degree we can - the common fabric of American culture and values. It is from that basis that I was dismayed by the discussion regarding the arrest of the 6 year old. If we as a society are to treat everyone as individuals, free to make their own choices, why did Sarah jump to race as the first and most important difference between how two people (though children) are treated? Why was there no consideration of repeated behavior, of parental involvement, of precedence at the school, any other circumstance which might well play into the different treatments? Why not at least go through the motions of establishing that there was no other reason for the adults in one case to handle it differently than the adults in the other case? We indulge the preconception of racial bias when we assume that it is the primary driver. Later, in the discussion of the curated populations of private schools vs the open enrollment of last resort in a public school, in the difference in family life (intact family vs a child being raised by her grandmother) and the presence of resource officers, it becomes apparent that many differences exist - differences that likely have a far greater impact on the outcome than the (alleged) racial bias on the part of the adults. I would like to think that all children would be treated with as much care and charity as David's child, and if they are not, we should fix that! Assuming racial bias - and worse, leaping headlong to the assumption that OF COURSE that assumed bias was the most salient feature of difference - has thus far failed to get us to that better world. How about we tackle some of the other issues in play - and along the way, acknowledge that the damage being done by physical and emotional outbursts is not limited to the child exhibiting those behaviors, but also to the other children in the classrooms.

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      Julia

      I agree that it is important not to jump to conclusions about racial bias (which is exactly how my husband and I counseled our daughter when she was falsely accused of shoplifting by a security guard at age 14-- and vindicated by security footage after the fact--and our son when he was pulled over and questioned by the cops at age 17--in our neighborhood--because he matched the description of a burglary suspect). I think the point in this case that there no conceivable justification to arrest a six-year-old (no matter how she is behaving) and that it is impossible to imagine a middle class white six year old being arrested, (no matter how she was behaving).

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        Kerani

        Hmmm. I am reluctant to assert 'no conceivable justification' and 'impossible to imagine' - like Han Solo, I can imagine a lot. I am with you on thinking that I am very suspicious of alleged justification for arresting kids that young. But...there are a large number of kids of all ethnicities arrested. (See here: https://www.google.com/amp/s/abcnews.go.com/amp/US/30000-children-age-10-arrested-us-2013-fbi/story%3fid=65798787) I think one way of ensuring support of the majority for justice reform is to not try (in the face of evidence clearly showing otherwise) to insist that this is an injustice done 'only' to minorities. Point out that it is a problem because of what it is, not because of who it is done to.

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          Julia

          Again, I totally agree it's important not to jump to conclusions, and I further agree that this injustice isn't--strictly speaking--exclusively done to minorities (although I would suspect that white children are victimized in such a way would likely be poor). However, I do think Sarah's assertion about the role of race reflected two realities: 1. Black children (boys and girls) are (often subconsciously) viewed by many (not all, of course) as older and "less innocent" than white children of identical age. (It is terrifying, as a parent, to feel like your goofy, silly (but large) son could look deeply threatening to a stranger; it's disconcerting to see grown men cat call your preteen daughters in the mall.) 2. When children are mistreated by authority figures, those authority figures are assuming in the moment that they will get away with it, that the parents will not come and raise heck. Poor, working class, and minority parents (including, on occasion, middle class minority parents) are sometimes subconsciously assumed to be uninterested, unwilling, or unable to take up for our kids, so sometimes our kids get mistreated. I agree that de-emphasizing the role of race might win more white conservatives to this cause. At the same time, acknowledging the role of race might help win more minorities into the conservative fold. Just a thought.

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    Debi Simons

    Hello David and Sarah--so glad that you (esp. David) are addressing the whole issue of what the pro-life movement really should be doing. I found the previous episode with the woman who was going to be arguing the LA abortion case to be quite unsettling. (Although I loved the shoe discussion!) It's just disingenuous to claim that this case is all about women's health. No, it's all about restricting abortion. Let's be honest about it. And then, as you say, David, let's figure out what we really want to accomplish. We want to change hearts and minds on this issue. Overturning Roe will not do that. I feel very strongly that the pro-life movement fails to grapple with some very basic issues. There's such a failure to try to hold the father of the unborn child accountable, for instance. That 15-year-old girl whose boyfriend has pressured her into sex and is now pregnant is told that she has to carry that child to term. Well and good. But what about that despicable boyfriend? I'd also like to see some analysis of the totally unanswerable question of when the soul actually comes into existence. When fertilization occurs, human DNA is now formed. Is that the same thing as saying that the soul is present? The "seamless tissue of life" argument sounds good, and maybe is good. But how do we make a case for it? Etc.

    I love the podcast. Sarah, at first you just about drove me crazy with your interruptions of David, but that has calmed down considerably. I would have to say that I think the interaction of your two personalities is more, hmmm, sparkling? than that of David and Alexandra de Sanctis, much as I like her and liked the Ordered Liberty podcast. Thank you!

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    Julia

    Thanks to Sarah for pointing out the racial component of the six-year-old's arrest. It reminded me of the young boys who were handcuffed on the DC mall for selling bottled water without a permit. It's easy enough to imagine how innocent kids who are repeatedly treated like criminals from a young age might eventually just say "screw it" and lean into it. (And David, my husband was paddled in middle school for disrespecting a teacher and was paddled again at home when his parents found out!)

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    Kevin Johnson

    Good pod, as usual. But I am puzzled by Sarah’s almost off-handed assertion that E. Warren suffered significant sexism, especially from conservatives. This emerges from her stated rejection of many conservatives citing acceptance of Klobuchar as a “defense” against sexism being the origin of opposition to Warren. She and David acknowledged both policy reasons and tactical mistakes which hurt Warren, and I didn’t hear any evidence of sexism at play, except a gender gap in support in Massachusetts. Of course, there are often gender gaps between candidates of the same sex. Is this a disparate impact point? If someone opposes Warren more strongly that Kloubuchar, must we assume sexism is part of it? Sarah states that K. is a more “tradtional” woman that W., adding that the latter has an unusual haircut (?) seemingly implying this shows sexism. What have the conservatives Sarah talks about done to make us assume they need to defend themselves against charges of sexism vs. Warren? I’m not on Twitter, so perhaps this issue is clarified there, but I am conservative, voted for Hillary, and dislike W. Far more than K. for policy and honesty issues. Why must I be suspected of sexism? What am I missing?

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