NO-IMMUNITY.ORG
JUDICIAL IMMUNITY MUST END.
RESEARCH LIBARY
The Constitution vests the legislative power of the United States in Congress. The judiciary interprets and applies law; it does not possess the legislative power vested in Congress. The Supreme Court, like every other federal court, exercises judicial—not legislative—power.
Judicial immunity is not expressly granted to the judiciary by the United States Constitution. Nor did the doctrine originate from an Act of Congress establishing the broad judicial immunity recognized today. Its historical roots are found in English common law, and the doctrine was subsequently adopted, defined, and developed in the United States through decisions of the judiciary.
This history raises fundamental questions concerning judicial power, legislative power, public accountability, and the constitutional limits placed upon governmental authority: If the Constitution vests federal legislative power in Congress, upon what authority was a protection of this magnitude established and developed through judicial decisions rather than through the exercise of legislative power?
The authorities below trace this history from the English common-law foundations relied upon by American courts through the decisions that adopted, defined, limited, and expanded judicial immunity in the United States. Each authority is presented with a link to the decision and a short excerpt from the court’s own words.
The purpose of this library is to follow the authorities, examine the historical record, and allow the reader to determine what the cases actually established, where judicial immunity originated, how the doctrine developed through judicial decisions, and the authority upon which the judiciary relied in applying it.
CONSTITUTIONAL FOUNDATION
The Constitution establishes the framework of the federal government and defines the powers entrusted to each branch. Article III establishes the judicial power, while Article I vests legislative power in Congress. Article VI declares that the Constitution and the laws of the United States made in pursuance thereof are the supreme law of the land. These provisions provide the starting point for examining the constitutional boundaries of judicial authority and the separation of governmental powers.
CONSTITUTION & FOUNDING DOCUMENTS
FOUNDING-ERA
It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
Madison's point here was that governmental power tends to expand beyond its assigned boundaries. For that reason, each department must be effectively restrained from exercising powers that the constitutional structure assigns to elsewhere.
“It is evident that each department should have a will of its own.”
"The Judiciary... has no influence over either the sword or the purse..." "It may truly be said to have neither FORCE nor WILL, but merely judgment..."
ACTS OF CONGRESS & EARLY STATUTES
The First Congress required the constitutional oath and extended the oath requirement to officers appointed under the authority of the United States before they acted in their respective offices.
Congress enacted the Judiciary Act to establish the federal judicial system contemplated by Article III, determining the structure and jurisdiction of the federal courts. The Act established the Supreme Court’s composition, inferior federal courts, and the office of Attorney General.
U.S. Judicial Immunity Development
"Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.”
“The settled common law principle that a judge is immune from liability for damages for his judicial acts was not abolished by § 1983.”
“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority…”
“Judicial immunity is not a bar to prospective injunctive relief against a judicial officer… acting in her judicial capacity.”
“This Court has been cautious in recognizing claims that government officials should be free of the obligation to answer for their acts in court.”
“Our cases make clear that the immunity is overcome in only two sets of circumstances.”
1. Nonjudicial actions — actions not taken in the judge’s judicial capacity.
2. Judicial actions taken in the complete absence of all jurisdiction.
SUPREME COURT DECISIONS
Limits on Governmental/Officials
"It is a proposition to plane to be contested, that the constitution controls any legislative act repugnant to it."
"It is emphatically the province and duty of the judicial department to saw what the law is."
“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office…” "There can be no officer, either de jure or de facto, if there be no office to fill."
“The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”
“The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times.”
English Common-Law Foundation
“The reason and cause why a judge, for anything done by him as judge… shall not be drawn in question before any other judge… except before the king himself…”
“When a Court has jurisdiction of the cause, and proceeds… erroneously… no action lies…” “But when the Court has not jurisdiction of the cause, then the whole proceeding is coram non judice, and actions will lie…”
“An action will not lie against a judge for what he does judicially…”
HISTORICAL ORIGINS OF JUDICIAL IMMUNITY
Early U.S. Supreme Court Development
“Now, it is a general principle applicable to all judicial officers, that they are not liable to a civil action for any judicial act done within their jurisdiction.”
The Court recognized judicial immunity as a principle applicable to judicial officers for judicial acts within their jurisdiction. In explaining the doctrine, the Court relied upon English common-law authority and distinguished acts within jurisdiction from acts taken without jurisdiction. Randall represents an early U.S. Supreme Court application of the common-law principals that would later be developed in "Bradley v. Fisher (1871)."
CURRENT FEDERAL LAW
Oaths & Civil Rights
Judiciary & Judicial Procedure