Progressives have many reasons to be skeptical of Don Willett, a former justice of the Texas Supreme Court whom Donald Trump placed on the 5th U.S. Circuit Court of Appeals in 2018. Willett has suggested that the Voting Rights Act’s ban on the dilution of racial minorities’ votes is unconstitutional. He refused to reconsider an anti-abortion decision by his colleagues that flouted Supreme Court precedent. And he declined to revisit a ridiculous, overtly political ruling that threatened to eradicate Obamacare.
Willett is, in other words, a very conservative jurist. But unlike so many Trump nominees, he does not seem to be a rank partisan in robes. Willett has embarked upon an impressive and even courageous crusade for police accountability, challenging Supreme Court precedents that shield both state and federal law enforcement from liability when they brutalize civilians. Traditionally, it’s left-leaning judges who try to bend the law toward justice for victims of police violence. Willett, however, has become arguably the most vocal advocate of reform in this area of law among lower court judges. And there are already subtle signs that the Supreme Court is listening.
The chief target of Willett’s ire is the doctrine of qualified immunity, which limits the scope of federal civil rights law. The actual statute, Section 1983, that grants civilians the ability to sue state and local law enforcement in federal court for violating their constitutional rights, says nothing about qualified immunity. But the Supreme Court has grafted this doctrine onto the statute and used it to immunize most officers from civil suits. Under qualified immunity, a victim of police misconduct must prove two things before their case can proceed to trial: first, that the officer violated a constitutional right, and second, that this right was “clearly established” at the time of the offense. If the victim flunks either test, the officers get qualified immunity, the case is thrown out, and the victim never even gets their day in court.
It is this second test, the requirement that the right at issue be “clearly established,” that wreaks the most havoc. Federal appeals courts demand that the right be “clearly established” by their own precedents, freeing police to violate their own department rules if those rules haven’t been explicitly affirmed by the court. Yet courts don’t even have to decide whether a constitutional right exists in qualified immunity cases; they can simply say that the alleged right is not “clearly established,” denying future plaintiffs a precedent they could use to overcome qualified immunity.
Worse, courts frequently grant qualified immunity because of some minor discrepancy between the precedent establishing a constitutional right and the case at hand. For instance, in Taylor v. Riojas the 5th Circuit extended qualified immunity to the prison guards who locked Trent Taylor in a cell covered in human feces for six days—even though the court had previously held that locking people in feces-covered cells is unconstitutional. In the prior case, the court reasoned, the victim was locked up for months; in this one, he was locked up for six days. Because of this distinction, the court held, Taylor’s right not to be locked in an excrement-coated cell for six days was not “clearly established.”
Willett has consistently criticized both the doctrine of qualified immunity and its perverse consequences. In one opinion, he wrote “to register my disquiet over the kudzu-like creep of the modern immunity regime.” As he summarized it: “No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.” No wonder that “to some observers, qualified immunity smacks of unqualified impunity.” Willett concluded by adding his “voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration” of the doctrine.
One month later, Willett reiterated his concerns about “the entrenched, judge-invented qualified immunity regime.” By “insulating incaution” from consequence, he wrote, “the doctrine formalizes a rights–remedies gap through which untold constitutional violations slip unchecked.” Victims are left “violated but not vindicated.” But, he added, “as a middle-management circuit judge, I take direction from the Supreme Court.” And “a majority of the Supreme Court,” Willett wrote, “disagrees” with his critique.
Do they, really? On Nov. 2, the Supreme Court issued a surprise 7–1 decision in Taylor v. Riojas reversing the 5th Circuit’s grant of qualified immunity to the prison guards. (Justice Clarence Thomas dissented, and Justice Amy Coney Barrett did not participate.) In its unsigned decision, issued without oral arguments, the court reprimanded the 5th Circuit for ignoring “the obviousness of Taylor’s right.” Because of “the particularly egregious facts of this case,” the court held, “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” Then, in February, the Supreme Court ordered the 5th Circuit to reevaluate its decision in another qualified immunity case, McCoy v. Alamu, in light of Taylor v. Riojas.
As University of South Carolina School of Law professor Colin Miller has noted, these decisions indicate a major shift in the Supreme Court’s qualified immunity jurisprudence. The justices appear to be moving away from a “comparative” standard, which requires a precedent directly on point, toward a “no reasonable officer” standard, which would deny qualified immunity to an officer whose behavior was obviously unreasonable. This development would address Willett’s concerns: Victims of police misconduct would no longer need to identify a virtually identical precedent clearly establishing their rights; they could, instead, demonstrate that any reasonable officer would’ve known that the conduct in question was unconstitutional.
Willett seems to have picked up on this trend. Shortly after the Supreme Court’s decision in Riojas, he denied qualified immunity to two police officers who killed a man who posed no clear threat by pinning him to the ground, shocking him with a stun gun, and beating him with a baton. More recently, on Thursday, Willett denied qualified immunity to an officer who repeatedly shot an unarmed, mentally ill man as he stumbled away from the police, killing him. As Willett summed it up: “By 2017, it was clearly established—and possibly even obvious—that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”
To his credit, Willett’s distress over law enforcement’s lack of accountability extends beyond qualified immunity. In March, he wrote an impressive opinion criticizing a huge loophole in federal law: While Section 1983 allows lawsuits against state officers, there is no statute that lets victims sue federal officers, like FBI and Border Patrol agents, for damages. In a 1971 case called Bivens, the Supreme Court tried to remedy this problem by authorizing civil suits for excessive force against federal agents. Since 1980, though, an increasingly conservative SCOTUS has slashed away at Bivens, rendering it close to a dead letter.
Bemoaning this trend, Willett highlighted the tragic practical consequences of Bivens’ demise: “Private citizens who are brutalized—even killed—by rogue federal officers can find little solace in Bivens,” he wrote. In 2021, “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.” That means that “if you wear a federal badge, you can inflict excessive force on someone with little fear of liability.” Willett questioned the Supreme Court’s abandonment of Bivens, citing recent scholarship providing an originalist justification for the decision. And he implored either Congress or SCOTUS to fix the “rights-without-remedies regime” that they helped to create.
Because Willett was nominated by a lawless con artist, it may be tempting to write off his criminal justice opinions as a disingenuous bid for bipartisan praise. But the consistency and passion with which he has attacked unjust precedents suggests that, at least on police accountability, Willett is the real deal. And given that he might have the Supreme Court’s ear, he’s well-positioned to bend the law in a more just direction. In today’s conservative judiciary, progressives need all the allies they can find.