In my previous article, we went over the Immunity Clauses In the Constitution. In this article, we will go over the debates legislators had and President Andrew Johnsons opinion on judicial immunity before passing the Civil Rights Act of 1866, now known as 18 U.S.C. § 242. This involves criminal action for deprivation of rights.
Initially, President Andrew Johnson vetoed the Civil Rights Act of 1866. In his veto message, President Johnson expressed concern that section 2 would cause “judges of the State courts who should render judgments in antagonism with [section 2’s] terms” to “be brought before other tribunals and there subjected to fine and imprisonment for the performance of the duties which such State laws might impose.”48 President Johnson critiqued section 2 for “invad[ing] the judicial power of the State” and argued that “adequate judicial remedies could be adopted to secure the desired end . . . without assailing the independence of the judiciary, always essential to the preservation of individual rights.”49
Senator Lyman Trumbuss
When the Senate reconsidered the bill after it was vetoed, Senator Lyman Trumbull, the sponsor of the bill, did not shy away from the application of the bill to judges, stating instead: “I admit that a ministerial officer or a judge, if he acts corruptly or viciously in the execution or under color of an illegal act, may be and ought to be punished; but if he acted innocently the judge would not be punished.”50
Senator Trumbull went on to cite historical examples of judges facing criminal consequences for their actions.51 He also stated:
“The assumption that State judges and other officials are not to be held responsible for violations of United States laws, when done under color of State statutes or customs, is akin to the maxim of the English law that the King can do no wrong. It places officials above the law. It is the very doctrine out of which the [Civil War] was hatched. Everything that was done by that wicked effort to overturn our Government was done under color of law. . . . Every judge who has held a court in the southern States for the last four years [from 1862 to 1866], and has tried and convicted of treason men guilty of no other offense than loyalty to the Union, acted under color of law.”52
Members of the House of Representatives similarly embraced the potential criminalization of judges’ actions. In minimizing President Johnson’s argument that section 2 “invade[d] the judicial power of the State,” Representative William Lawrence from Ohio argued that the Supremacy Clause of the Constitution inherently “‘invades the judicial power of a State’ whenever it undertakes to disregard the national Constitution.53
Representative Lawrence went on to say:
“I answer it is better to invade the judicial power of the State than permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded. . . . I concede that in ordinary times it might be well to await the slower forms of the civil law to reach the final decision of fundamental constitutional questions. But we now employ military power to reach the same results, to secure civil rights. If penal enactments enforced by civil tribunals, can reach the same result, this is better than the exercise of military power.”54
Like Senator Trumbull, Representative Lawrence read a requirement of willfulness for a judge to be prosecuted under section 2. Responding to this critique that errors of judgment would lead to judges being fined or imprisoned, he said:
“[T]his is by no means [section 2’s] purpose or its legal effect. The universal rule of law is that there can be no crime unless there be willful wrong. . . . [I]f an officer shall intentionally deprive a citizen of a right, knowing him to be entitled to it, then he is guilty of a willful wrong which deserves punishment.”55
Passing the Civil Rights Act of 1866
After numerous conversations and remarks about judges being open to prosecution due to section 2, in April of 1866, the Senate and the House of Representatives overrode President Johnson’s veto, passing the Civil Rights Act of 1866 into law.56
Senator Lyman Trumbull also suggested that state legislators would not be liable for enacting unconstitutional laws. Under the Act, Trumbull argue, “the person who, under the color of the law, does the act, not the men who made the law” may be held liable.57
In the years since its passage, section 2 has been revised and amended and now appears in the U.S. Code as 18 U.S.C. § 242, though it largely retains the original text of section 2 of the Civil Rights Act of 1866.58
Supreme Court decision on immunity
Consistent with the legislative history of the Civil Rights Act of 1866, the Supreme Court has held that judges are not immune from 18 U.S.C. § 242, stating:
[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. On the contrary, the judicially fashioned doctrine of official immunity does not reach “so far as to immunize criminal conduct proscribed by an Act of Congress . . . .”59
To highlight the point: despite criminal prosecutions inevitably having an effect on judicial behavior, and despite the fact that judicial immunity from criminal and civil suit was well established since the days of Floyd v. Barker, the Supreme Court has held that judges lack immunity from prosecution for violating constitutional rights under 18 U.S.C. § 242 because Congress acted to proscribe criminal conduct by judges in the Civil Rights Act of 1866.
This conclusion makes sense. After all, absolute judicial immunity was not universal in 1866,60 so the framers of what became 18 U.S.C. § 242 would not have needed to insert a clear statement in the text of the statute. It was obvious that the statute would open judges up to prosecution.61 Indeed, in the immediate aftermath of the Civil War, the prosecution of state judges for violating people’s civil rights under a congressional statute was affirmed by the Supreme Court as a valid exercise of Congress’s power.62
If there were any doubt remaining, the Supreme Court enshrined the lack of judicial immunity from criminal prosecution under 18 U.S.C. § 242 in O’Shea v. Littleton,63 Imbler v. Pachtman,64 and Dennis v. Sparks.65
So why did the first circuit not prosecute Judge Mary Rudolph Black in case #23-1655?
We have yet to find out the Supreme Court’s decision on this. However, the First Circuit judges would not investigate this matter. Instead, they protected her with immunity under the 11th amendment.
Martin Luther King Jr stated that justice delayed is justice denied. That is certainly the issue here. For any judge to not IMMEDIATELY take action and return kidnapped children to their parents is inexcusable. Those federal court judges should be impeached and criminally prosecuted.
In the next article we will talk about the Debates on Judicial Immunity Before Passing the KKK act of 1871, now known as Code 42 U.S.C. § 1983. This involves civil actions for deprivations of rights.
Footnotes
48 Cong. Globe, 39th Cong., 1st Sess 1680 (1866)
49 ID.
50 Id. at 1758 (emphasis added).
51 Id. at 1759.
52 Id. at 1758.
53 Id. at 1836.
54 Id. at 1837.
55 Id.
56 See Senate Vote #94 in 1866 (39th Congress), GovTrack, https://www.govtrack.us/congress/votes/39-1/s94 [https://perma.cc/TC63-57UY]; House Vote #154 in 1866 (39th Congress), GovTrack, https://www.govtrack.us/congress/votes/39-1/h154 [https://perma.cc/Z5QM-2KEN].
57 Cong. Globe, 42d Cong., 1st Sess. app. 79 (1871).
58 See 18 U.S.C. § 242 (“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both . . . .”). Notably, 18 U.S.C. § 242 also requires willfulness, which was discussed by both Senator Trumbull and Representative Lawrence, see supra pp. 1468–69, but was not in the original text of section 2 of the Civil Rights Act of 1866, see supra pp. 1467–68.
59 O’Shea v. Littleton, 414 U.S. 488, 503 (1974) (omission in original) (citation omitted) (quoting Gravel v. United States, 408 U.S. 606, 627 (1972)).
60 See supra p. 1465.
61 See supra pp. 1467–69.
62 See, e.g., Ex parte Virginia, 100 U.S. 339, 348 (1880) (permitting criminal prosecution of state judge where state judge excluded Black jurors from jury selection in violation of the Constitution).
63 414 U.S. 488, 503 (1974).
64 424 U.S. 409, 429 (1976).
65 449 U.S. 24, 31 (1980); see also United States v. Lanier, 520 U.S. 259, 269 (1997).