THE SUPREME COURTS decision Thursday that high federal officials can be held personally responsible if they deliberately violate someones's constitutional rights will spawn, no doubt, a host of lawsuits. It may even, as the four dissenters claimed, "dampen the ardor" of some officials "in the unflinching discharge of their duties." But it may also in the long run, help to restore to government some of the sense of individual accountability that many citizens believe it has lost.
The full effect of this decision will not be measurable for years. The justices merely set out a principle - that high officials, with the exception of those with judicial and quasi-judicial tasks, are not automatically and absolutely immune from damage suits for their official acts. They left the details for later. Some officials, the president among them, may be able to persuade the courts that they should be totally immune. Others will have to litigate the extent of the qualified privilege the court did authorize. That privilege, apparently, grants them immunity from damages except when their acts manifestly exceed their authority or when they discharge their duties in a way they know or should know violates the Constitution.
Except for the initial round of lawsuits this decision will trigger, the new rule should not cause good officials much trouble. The court is not proposing that an official who makes a mistake in judgment be required to pay for it. It is saying that those who willfully disregard the rights of citizens may have to pay - in cash. That distinction should discourage government officials from ordering actions, like the "black bag jobs" of the FBI a few years ago, that clearly violate the law. It may even make them more cautious to direct their subordinates to do things - like issuing derogatory press releases - that may not violate a law but are on the margin of propriety. It ought not to have much effect on officials who administer laws fairly and intelligently and who worry anyway about the effect of their decisions on the rights of those affected by them.
This same rule has applied to state and local officials since 1974, when the court ruled that the governor of Ohio did not have an absolute immunity for his actions in the Kent State shootings. Whether he was monetarily liable for the damages inflicted there, the court said, depended upon the facts of the case. It would have made "no sense," as the court now says, to require a state governor to defend his actions in that manner but to allow a federal Cabinet officer in the same situation to avoid having to defend himself by claiming immunity. As Justice Byron R. White wrote, "Surely federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers."
These decisions, along with others this year involving local governments and members of Congress, have substantially expanded the opportunities for citizens to collect damages when they are abused. In a way, this is part of the answer to the complaint that governments have grown so large and bureaucracies so faceless that the average citizen never has a chance. The court clearly sensed that, as the excerpt from Justice White's opinion, printed For the Record today, makes clear. While these decisions could result in a bonanza for those who sell liability insurance - call it "political malpractice insurance," if you like-they also guarantee to the citizen whose rights are invaded that someone in government may be personally accountable for things that go wrong.