Immunity, Impunity, Immorality

Your Supreme Court at Work

Pity the justices of the U.S. Supreme Court. These days they don’t get no respect any more than Rodney Dangerfield does, and they are attacked on all sides. Enraged by the Supreme Court decision on tariffs, and still smarting from the 2020 election “stolen” from him, Donald Trump has called various justices disloyal, unpatriotic, fools, lapdogs, and an embarrassment to their families. I flatter myself that I have better manners, so I want to put my own reflections more delicately: I have begun to wonder whether members of the conservative Supreme Court majority have a personal moral compass.

The conservative justices dominating the Supreme Court have inflicted on the body politic the most damaging decisions of this century, the two worst being Citizens United v. Federal Election Commission, which released a flood of money to distort our elections, and Trump v. United States, which made the president virtually immune from accountability for his actions. I abhor these decisions; yet I thought they result from legal doctrines I disagree with or, at worst, that they are shaped by ideology. I assumed that the moral principles guiding the justices’ personal lives conform to rules of common decency most of us follow (though I admit to twinges of doubt about the behavior of Clarence Thomas and Samuel Alito, as well as the uneven application of the majority’s own rules to Joe Biden’s and Donald Trump’s administrations).

Until now. What brings me to my present melancholy reflections are a pair of seemingly unrelated recent decisions which ignore the often invoked judicial warnings against results that “shock the conscience of the court.”

In Zorn v. Linton, decided on March 23, 2026, the plaintiff, Shela Linton, participated in a peaceful sit-in protest at the Vermont capitol. In an effort to clear the area the police asked the protesters to stand up and leave, and some who refused were picked up and dragged out without being injured. The plaintiff came in for rougher treatment. Defendant Zorn, an officer, placed her in a wristlock, described in the majority opinion as “a technique that officers use to gain control over a resistant person by gripping his wrist, placing it behind his back, and bending it backwards.” It is a very painful procedure, as a police video available on YouTube shows. Although the plaintiff screamed in pain, pressure was increased the second time she refused to obey the order to stand, remaining seated with arms linked to other protesters. She suffered permanent injury and trauma. Her lawsuit alleged violation of her Fourth Amendment right against the use of excessive force.

The conservative majority on the Supreme Court denied her relief. The decision was based on the established rule that officers have qualified immunity while doing their jobs, except when they act in a way which every reasonable official would have understood was a violation. Prior decisions on the subject presented a wide variety of fact patterns, none exactly like the one in this case. After reviewing the prior cases, the majority held that Linton had not clearly established her claim that Zorn’s conduct was not protected by qualified immunity.

Here, however, is where the actual disposition of the case becomes significant. The dissenting opinion of Justice Sotomayor, which justices Kagan and Brown joined, disputed the majority’s views of the precedents, but the main point was this: though it might not be clear that the exception to the doctrine of qualified immunity applied to the facts in this case, it was equally unclear that it did not apply. A jury could have found either way. Therefore, the Court should have affirmed the decision of the Second Circuit Court of Appeals which had sent the matter back to the lower federal court for adjudication. Instead, the majority entered summary judgment in favor of officer Zorn.

Justice Sotomayor noted the “troubling asymmetry” in the Court’s history of unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” while rarely intervening where courts wrongly hold officers entitled to qualified immunity. She complained of the majority’s one-sided approach that “transforms the doctrine into an absolute shield for law enforcement officers” and concluded: “The majority today gives officers license to inflict gratuitous pain on a nonviolent protestor even where there is no threat to officer safety or any other reason to do so.”

Now for Reed v. Goertz, decided the same day. In 1998 Rodney Reed was convicted in a Texas state court of strangling Stacey Lee Stites and condemned to death. He has consistently maintained his innocence, claiming that the murder was committed by Stites’ fiancé, Jimmy Fennel, and presented some evidence in support of the claim. In 2014 Reed asked the Texas prosecutor to permit a DNA test of the belt used as a murder weapon, maintaining that such a test would exonerate him. The prosecutor denied consent and the Texas courts refused to order the test. Their decision was based on a Texas statute which requires a finding that the “chain of custody” of the object in question be sufficient to insure it is not compromised, whereas the belt was handled by many people with ungloved hands.

Eventually the matter found its way to the U.S. Court of Appeals for the Fifth Circuit. There Reed argued, among other things, that the Texas statute was arbitrary and denied him due process of law because DNA tests have developed such accuracy that the result is not affected by contamination. An amicus brief filed by an expert supported Reed’s claim. The court denied the relief Reed sought. To me this result is hardly surprising, this being Texas and the Fifth Circuit, the most conservative federal appellate court in the nation (and, perhaps, the victim and Fennell being white and Reed black).

Reed petitioned the Supreme Court for certiorari. Here is the full text of the Supreme Court’s decision by the usual conservative majority: “The petition for a writ of certiorari is denied.” No opinion, no discussion.

Justice Sotomayor wrote a dissenting opinion in which Justices Kagan and Brown joined. She stressed that though the Fifth Circuit court had dealt with other arguments Reed presented, it had not adequately considered the one described. She called the majority decision “inexplicable,” concluding that “the State will likely execute Reed without the world ever knowing whether Reed’s or Fennell’s DNA is on the murder weapon, even though a simple DNA test could reveal that information.”

When considered together rather than individually, these two cases lead me to wonder how the conservative justices can be comfortable with the results of their decisions and the effect they have on other human beings. What kind of moral compass is guiding them when they say, in effect: immunity for the president, impunity for authority figures – and don’t waste our time with the petty concerns of a nobody on death row or some lady that shouldn’t have been protesting in the first place.

Under the Constitution, justices “hold their Offices during good Behavior.” Does the record compiled by the majority meet that standard?