Bench Memos

NRO’s home for judicial news and analysis.

More on Immunity


Senator Cornyn’s office, which has consistently been producing legal analyses of impressively high quality, issued this statement and memo today:

“Any connection between Judge Alito’s 1984 memorandum and the current discussion of terrorist surveillance by the NSA is a real stretch. The 1984 memorandum involved domestic surveillance, which the Supreme Court ruled unconstitutional in 1972, and which Judge Alito did not question in any way. The question Judge Alito addressed in the 1984 memorandum was whether lawsuits for money damages against government officials were the proper remedy for illegal wiretaps. The Supreme Court agreed with him 5-2 that they were not.

“The fact that Judge Alito’s opponents have embraced this memorandum in their efforts to defeat him prove how little ammunition they have to oppose him.”–U.S. Sen. John Cornyn

Judge Alito’s memorandum on June 12, 1984, re: Forsyth v. Kleindienst

*The case involved a suit for money damages against the Attorney General for conducting warrantless domestic wiretapping. The wiretapping took place two years before the Supreme Court held in United States v. United States District Court, 407 U.S. 296 (1972), that such wiretaps were unconstitutional. Nowhere in the memorandum does Alito express any disagreement whatsoever with the Supreme Court’s 1972 decision.

*The only question was whether a lawsuit seeking money damages for actions government officials take in their official capacities is the proper remedy for the for such actions. Other remedies are readily available, such as suits for injunctive relief, criminal liability, and the political process.

*Judge Alito urged the Solicitor General to appeal a lower court decision and suggested that the Attorney General should have qualified immunity from suits for money damages. The Supreme Court agreed with Judge Alito 5-2, holding that the Attorney General had immunity. Justices O’Connor, White, Stevens, and Blackmun were all in the majority.

*Judge Alito also urged the Solicitor General not to appeal a lower court decision that the Attorney General did not have absolute immunity from suits for money damages. Other government lawyers had argued that the Attorney General did have absolute immunity. Judge Alito demurred: “I do not question that the attorney general should have such immunity, but, for tactical reasons, I would not raise the issue here.” Judge Alito did not endorse the argument that the Attorney General had absolute immunity; he did not address it, believing it unlikely to prevail.

*In any event, even had Judge Alito endorsed the argument, it hardly would have been extraordinary. Although the Supreme Court rejected the argument 4-2, the dissenting Justices on this point were Chief Justice Burger and Justice Stevens; they believed the Attorney General had absolute immunity. Justice Stevens wrote: “When the Attorney General, the Secretary of State, and the Secretary of Defense make erroneous decisions on matters of national security and foreign policy, the primary liabilities are political. Intense scrutiny, by the people, by the press, and by Congress, has been the traditional method for deterring violations of the Constitution by these high officers of the Executive Branch.” Even Justice O’Connor refused to join the Court’s decision denying absolute immunity to the Attorney General, choosing not to address the issue.


Sign up for free NRO e-mails today:

Subscribe to National Review