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The Reverse Nuremberg Defense, Supreme Court Edition

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I’ll have more about the Toobin article on John Roberts later. But the bottom-line quote — “The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society” — applies quite forcefully (as it usually does) to all of the Court’s conservatives in the most recent Anthony Kennedy atrocity, Ashcroft v. Iqbal.

Lyle Denniston explains that the ruling creates a standard that will make it very difficult to hold high officials responsible for misconduct carried out by their subordinates. And what’s particularly disturbing is what Kennedy had to do to reach this conclusion. As Souter lays out in section 1A of his dissent, what’s remarkable is that Kennedy held that a superior’s knowledge of and indifference towards unconstitutional conduct by subordinates could not make the former legally liable, although Ashcroft and Mueller conceded that they would be liable if their knowledge and indifference were proven. Kennedy, in other words, went far out of his way to insulate powerful state actors from consequences of illegal conduct they should (and, under previous Supreme Court precedents, properly would have) been held responsible for, with patently unjust consequences:

Finally, the Court’s approach is most unfair to Iqbal. He was entitled to rely on Ashcroft and Mueller’s concession, both in their petition for certiorari and in their merits briefs, that they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on the question.

I would post Kennedy’s defense of his casual disregard of precedent in order to protect powerful state actors in their abuse of people’s constitutional rights. But (as one of our commenters noted) he doesn’t actually have a response to Souter. The reasons for this are pretty obvious, and it’s a disgrace.

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