I write this from London on the eve of the announcement that the nomination of Judge Ketanji Brown Jackson to succeed Justice Breyer is about to go to the full Senate for confirmation. Those who follow my writings will know that I am among a group of right-of-center former public officials in Republican administrations who are on record as supporting this nomination of an experienced and well-qualified federal judge.
That full disclosure aside, I think it fair to say that, in what has become an unfortunate custom, fostered by Republicans and Democrats alike, Supreme Court confirmation hearings have become events of a sort never envisioned by the Framers, dominated more by the politicizing statements of the members of the Senate than by those of the nominee. A case just decided by the Court demonstrates the fallacy of those who believe that their own political preferences automatically will be mirrored in the performance of the nominees of the party of the president who selects them.
President Trump’s last two nominees, Brett Kavanaugh and Amy Coney Barrett, were more than a little controversial. While much of their support and opposition were centered around the durability of Roe v. Wade, it was clear that their supporters expected, and their opponents feared, they would form an ironclad bloc of Trump-like judicial automatons. In recent terms of the Court, we’ve already seen cases where, for example, the libertarian tendencies of Justice Gorsuch have melded with the liberal views of Justice Sotomayor. The case of Thompson v. Clark is another case the result of which might confound politicians.
In an opinion written by Justice Kavanaugh, and joined not just by the Chief Justice and Justice Barrett, but also by Justices Breyer, Sotomayor, and Kagan (with Justice Alito, joined by Justices Thomas and Gorsuch, dissenting), the Court held that to maintain a suit for malicious prosecution as a Fourth Amendment Claim under 42 U. S. C. §1983, a plaintiff need not demonstrate that he obtained a favorable termination of the underlying criminal prosecution.
Mr. Thompson was living with his fiancée (now wife) and their newborn baby in a Brooklyn apartment when his mentally-ill sister-in-law made a 911 report that Thompson was sexually abusing the baby. Thompson denied entrance to Emergency Medical Technicians who arrived without a warrant. When they returned with police officers, who still didn’t have a warrant, they nevertheless entered the apartment and handcuffed and arrested Thompson, who was charged with obstruction and resisting arrest. The baby was taken to a hospital where it was determined that there were no signs of abuse. Thompson was kept in jail for two days, and the charges against him were dismissed before trial without any explanation by the prosecutor or judge. The dismissal of Thompson’s suit for malicious prosecution was affirmed by the Second Circuit, which, like the Supreme Court dissenters, found that a plaintiff in such a case had to be able to show that he received a favorable determination of the case against him. Likening the case to a Fourth Amendment search-and-seizure claim, Justice Kavanaugh and his allies held that a plaintiff need only show that his prosecution ended without a conviction. Thompson satisfied that requirement.
While of great importance to Mr. Thompson, this case is not exactly a landmark. However, the lineup of Justices that decided it is more than a little interesting. And to close observers of the Court, it begs the question of how predictions as to the performance of Justices often are flawed. How will Justice Ketanji Brown Jackson rule? Surely, she will be on the liberal side of things, perhaps in the vein of Justice Breyer for whom she clerked. But one expects that she often will surprise.