LIKE OTHER PUBLIC officials, judges need to be protected from angry losers. That's why the Supreme Court a hundred years ago established the doctrine that judges are immune from damage suits based on claims that their judicial acts have wrongly harmed someone. Judges would not feel free to make principled or unpopular decisions in controversial cases if losers could hound them with litigation charging malice or corruption. But the Supreme Court this week carried the doctrine too far in the case of a young woman who was sterilized after what was, at best, a kangaroo-court proceeding. Its decision grants unchecked power to judges to act secretly, conspiratorially and even illegally without fear of being sued for damages; they need invoke the right of judicial trappings.
Consider the facts of this case. In 1971, an Indiana woman presented to a local judge a petition to have her 15-year-old daughter sterilized. The mother stated under oath that the girl was "somewhat retarded" (although she had been promoted with her class in school each year), that she associated with older men and had stayed overnight with them on several occasions, and that sterilization would be in her best interests "to prevent unfortunate circumstances." The judge signed the petition - without notifying the girl or appointing a lawyer to represent her or holding a hearing or filing the petition in his court. He acted, what is more, without any specific grant of power under Indiana law. A week later, the girl was sterilized at the same time her appendix was removed. Some years later, after she was married, she discovered what had been done and sued the judge, her mother, her mother's lawyer and the doctors for damages.
The Supreme Court ruled, 5 to 3, that the judge is immune from the suit. What he did was a "judicial act," the court says, because signing the petition is an act normally undertaken by a judge, and the parties were dealing with him as a judge. He would not be immune, the court said, only if he clearly lacked jurisdiction over the petition. He had jurisdiction, it explained, because Indiana law gave him broad, general power and did not specifically bar him from handling such matters.
For the reasons set out eloquently by Justice Potter Stewart in dissent and quoted on this page For the Record, we think the court's logic is defective. It permits judges to abuse their power without fear of redress. Just recently, a judge in New York ordered the immediate arrest of a street vendor who had sold his bailiff a cup of coffee the judge did not like. That, under the court's formula, was a "judicial" act. But even that, as gross as it may have been, was quite different in character. The vendor, in theory at least, could get a judge of a higher court to set him free. The girl who was sterilized had no opportunity to appeal to a higher court and no way to change the permanent effect of that "judicial" order on her life.
As Justice Lewis Powell pointed out in his dissent, the court simply ignored the basic reason why a nation can run the risk of granting its judges a certain immunity. It is that their acts as judges are, almost without exception, subject to review before they create permanent damage. A single judge, acting wrongfully or spitefully or illegally, can harm you temporarily in many ways. But he should never have unlimited power to make that harm permanent on his word alone. That blatant immunity is what the court has granted. It is a deeply disturbing step toward judicial omnipotence.