NOT ALL THE troubles in the county courthouse in Jersey, Ill., were to be found among the litigants. There were personnel problems among the staff. Chief Judge Howard Lee White eventually decided to fire probation officer Cynthia Forrester. He says it was after a prolonged period of infighting between Miss Forrester and another -- male -- probation officer and because of complaints about her work schedule. She says it was a simple matter of sex discrimination. She sued the judge and was awarded more than $80,000 in damages. Judge White, however, won a dismissal of the award on grounds that judges are immune from suit for acts performed in the course of their official duties. On Tuesday the Supreme Court reversed.
Writing for a unanimous court, Justice Sandra O'Connor distinguished between a judge's adjudicative acts and his administrative acts. In the former, absolute immunity is essential both to protect judicial independence and to discourage disappointed litigants from attacking judges personally rather than appealing decisions in an orderly way. As Judge Richard Posner pointed out at the appellate level, this protection is needed in situations where an official's position requires that he be constantly making decisions that disappoint and distress members of the public -- a condition shared by judges and prosecutors, who also enjoy broad immunity for official acts.
But all this special treatment is designed to insulate the judicial process, not to make life easy for judges. Like everyone else, the Supreme Court ruled, they can be sued for injuries that are not directly related to the business of adjudicating cases. Employment discrimination, for example. It is not always easy to distinguish between judicial and administrative functions. Two courts below, after all, had found that the hiring and firing of probation officers was a judicial function. But Justice O'Connor clearly puts employment decisions in the administrative category, opening the door to the kind of suit that is already commonplace outside the courthouse.
It is no fun to be sued personally in these cases, even if one is able successfully to defend against the charges. But that is how everyone in the real world lives -- private employers, executive officials (except the president) and legislators. Now, judges, like everyone else, as Judge Posner warns, "will have to buy liability insurance."