Academic journal article Texas Review of Law & Politics

Sued for Speechifying: Legislative Immunity Trumps Monell Liability

Academic journal article Texas Review of Law & Politics

Sued for Speechifying: Legislative Immunity Trumps Monell Liability

Article excerpt


The United States is currently experiencing a period of heightened political division accompanied by a significant reorientation in the federal judiciary-including at the Supreme Court of the United States. American politics were thrown into chaos on February 13, 2016, with the sudden passing of the iconic Justice Antonin Scalia.1 The future of the Supreme Court became a focus of that year's presidential contest possibly to a greater degree than any previous election cycle. On Election Day 2016, 21% of voters said the Supreme Court was the top issue shaping their vote for President,2 and those voters preferred President Donald Trump to Secretary Hillary Clinton by a fifteen-point margin of 56% to 41%.3

For the first time since perhaps 1934,4 a majority of the Supreme Court professes to be constrained to follow the original public meaning of the Constitution (a judicial philosophy known as originalism5) and to faithfully follow the text of federal statutes (an interpretive methodology known as textualism6). While stare decisis is always relevant when the Justices have previously addressed aspects of a legal issue-and while everyJustice can draw the line in a different place in terms of when stare decisis requires adhering to precedent7-this declared fealty by a majority of the Court to be bound by the positive law resulting from the democratic process is something not seen in recent decades prior to the confirmation of Justice Brett Kavanaugh to the Supreme Court. Now is a time of unknown potential for restoring the constitutional order envisioned by the Framers, unknown in part because only time will tell how far each Justice currently serving on the Court believes he should go in terms of the direction of the law. But anywhere in the range of likely outcomes, constitutionally rooted immunities should fare well in the new Supreme Court against legal theories that stray from the original public meaning of the Constitution in general and the proper Article III role of federal courts in particular.

Legislative immunity, rooted in the Constitution's Speech or Debate Clause, is one example of a doctrine that should flourish in this legal environment because of the Constitution's clear language safeguarding lawmakers against hostility from the other branches of government.8 Legislative immunity is predicated upon the principle that safeguarding democracy by protecting the autonomy of legislatures as a whole is worth occasionally sacrificing justice when individual legislators commit acts for which they should otherwise be held accountable.9 "The history of the parliamentary privilege is a long and turbulent one, developed in the course of conflict between Parliament and the Crown as to the proper subjects of discussion on the floor of Parliament."10 The Framers codified this protection in the Constitution for members of Congress, and the common law provides the same protection for state and local legislators.11

Absolute immunity for legislators could prove increasingly consequential in an era of hyperpartisan rhetoric and growing political hostility. Senators are hounded out of restaurants,12 senior White House officials are chased down the street,13 and Cabinet Secretaries are yelled at during dinner.14 Senior members of Congress encourage such uncivil conduct,15 while other Members call the President of the United States a racist16 and hurl defamatory accusations against school students.17 It is not far-fetched to imagine Senators or Representatives uttering legally actionable comments in such a belligerent environment, making exploration of their potential immunity from suit a timely legal discussion.

Contrast the deeply anchored pedigree of legislative immunity with the shaky foundation for municipal liability in Monell v. Department of Social Services of City of New York.18 Congress first created what is now 42 U.S.C. 1983 in 1871 to safeguard federal rights against violations from state and local officials, but did not abrogate state sovereign immunity when doing so. …

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