Prof. Althouse has a long post up about the "Bong Hits 4 Jesus" case. She points to a couple of moments in the Supreme Court's argument yesterday that bugged me. A good chunk of the argument was devoted to the qualified immunity standard. For the unlawyerly, qualified immunity is a doctrine that protects defendants in constitutional tort suits by not forcing them to face a trial and potentially have to pay damages unless (a) the act they're accused of committing violated the plaintiff's constitutional rights, and (b) that right was clearly established in the law at the time of the act to the point that the defendant should have known it violated a constitutional right. So while most of the argument concerned whether the "Bong Hits 4 Jesus" banner was speech protected by the First Amendment, part of it was focused on whether the scope of First Amendment law was clear to the principal who punished the student for unfurling the banner.

One thing that irked me a bit was the portion of the argument where the Justices asked the student's lawyer if his case was really all about money -- potential punitive damages. There was a distinct current of sympathy for the hard-working, beleaguered educator who might by subject to a big damages award. Why is this relevant in any way? How do the elements of a tort depend on the defendant's ability to pay? And what part of the qualified immunity analysis hinges on money? Plus, not only is Ken Starr representing the principal and school district for free, I'm pretty confident the county and its insurers would pay any judgment here. It's not as if the principal will have to fork over her milk money, any more than a sheriff has to write a check to an arrestee any time a search is found to go beyond the limits of the Fourth Amendment.

Defendants like to obscure this fact at trial, in the hopes that jurors won't calculate damages based on what an insurer can pay versus what a humble civil servant can cough up. But it's kind of lame for the Supreme Court to get suckered by it, too. (Note: I'm not saying that insurance companies should have to pay unwarranted sums or pay when there's no violation. My point is just that the legal analysis here shouldn't depend on sympathy for the size of the principal's paycheck.)

The other thing that nagged me is the joking that the First Amendment law couldn't possibly be clearly established for the simple reason that the Supreme Court had to argue about it for an hour. But that would be the case any time they hear argument -- including the times when they do find the law to be clearly established. Otherwise, the only time the qualified immunity defense would fail would be in cases where the answer was so obvious that the Supreme Court granted a summary disposition. In those cases, the defendants would be foolish to even pursue the case that far instead of settling.

It also puts the cart before the horse by conflating the two distinct, sequential steps in the qualified immunity analysis. The Court could spend a hundred pages debating the scope of Tinker, but if it ultimately concludes that Tinker covers this situation, it could very easily say that the law was clearly established as far back as 1969, regardless of how difficult it was to state exactly what that law was. If the Court works backwards -- which, despite some of the comments during the argument, it's not supposed to -- it runs the risk of saying that because the law wasn't clearly established, then there wasn't a constitutional violation in the first place.

Of course these cases are going to involve some line-drawing, and that process may be difficult. But if your conduct falls on the wrong side of that line, you don't win just because the line was hard to draw. Otherwise, what's the point of the line?

In today's oral argument in the "Bong Hits 4 Jesus" case, the school district was represented by Kenneth Starr, former Solicitor General and D.C. Circuit Judge. According to the transcript (71-page pdf), Chief Justice Roberts referred to Starr as "Mr. Starr," both in calling him to the podium and during the course of the argument.

I cringe when judges refer to Solicitors General or Attorneys General as "General" mostly because it's incorrect as a title. So I'm glad no one referred to Starr as "General Starr." But I was a little surprised that no one referred to him as "Judge Starr." Am I just unaware of some sort of protocol here? Does Starr's resignation from the court mean he isn't entitled to be called "Judge" anymore? To be sure, I'd have no problem if he were simply so unassuming and humble that he preferred not to be called "Judge." (He's probably called "Dean Starr" most often these days.) But for a group that typically stands on such formalism (such as the "General" thing), it surprised me a bit that none of the Justices (including Starr's two former colleagues on the bench) used the title. But perhaps they simply agree with the DC Circuit about the use of the title "Judge" in litigation. Is that all there is to it? I don't want to make a mountain out of a molehill, but it just struck me, and any thoughts on the matter would be appreciated.

UPDATE: In the very next argument, Wilkie v. Robbins (73-page pdf), the attorney for the government was Deputy Solicitor General Gregory Garre. At least two Justices called him "General." Sigh.