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Clark Neily

7 min read

Clark Neily is the Vice President for Criminal Justice at the Cato Institute. He is a scholar on constitutional law, over-criminalization, civil forfeiture, police accountability, and gun rights. He has written Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government and contributed a chapter to Libertarianism.org’s Visions of Liberty. He appeared twice on The Bob Zadek Show in July 2022 to discuss the Supreme Court’s Dobbs decision and the doctrines of qualified and absolute immunity. Judicial Round-Up with Clark Neily (2022)

The Dobbs decision and unenumerated rights

Neily explained that Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion, overruling about 50 years of Supreme Court precedent beginning with Roe v. Wade, which had held that there is a constitutional right to have an elective abortion. Five justices held that this is not a plausible way to read the Constitution, and therefore Roe and Casey must be overturned. Judicial Round-Up with Clark Neily (2022)

Bob Zadek asked whether it is an overstatement to say that Roe created a right to an abortion. Neily responded that this is how some people feel, and explained that when the court protects what is called an unenumerated right—a right not specifically articulated in the text of the Constitution—and somebody likes that right, they tend to emphasize that we all possess certain unalienable natural rights, some articulated in the Constitution and some not. He gave two examples: the right to travel around the United States, which is nowhere mentioned in the text of the Constitution but has never been seriously questioned; and the right to guide the upbringing of one’s own child, including decisions about where the child goes to school and whether they go to church, which is also nowhere mentioned in the text but has been enforced for over a hundred years by the Supreme Court. Judicial Round-Up with Clark Neily (2022)

Neily framed the question as whether the court should invent such rights because they are not specifically mentioned in the text of the Constitution, or instead recognize them because they are plausibly among the unalienable natural rights we all possess. On abortion, he said some people think the ability to terminate a pregnancy is among the unalienable natural rights and others think it is not. He and his colleague Jay Schweikert wrote a piece for Cato’s blog arguing that reasonable libertarians can see it either way, with powerful arguments on both sides but also powerful objections to either view. Judicial Round-Up with Clark Neily (2022)

Absolute immunity for prosecutors

In the second episode, Neily discussed absolute immunity, which he described as the gold standard of immunity. He noted that the judiciary is wildly disproportionately composed of former prosecutors and that the surest way in America to become a judge is to first be a prosecutor. The two vocations with absolute immunity from civil liability, he said, are prosecutors and judges. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)

Neily characterized the rationale for prosecutorial immunity as preposterously sophomoric. He summarized the Supreme Court’s position as: first, there are other ways to hold prosecutors accountable for misconduct (which he called false); second, nobody would want to be a prosecutor if people could sue them for misconduct, so civil liability must be eliminated altogether. He said that no matter how badly a prosecutor behaves—including suborning perjury, knowingly presenting false perjury in court to obtain a conviction known to be false as an act of personal vengeance, with the defendant convicted, spending 20 years in prison, and finally being exonerated—that prosecutor cannot be sued. He called this bonkers and said it is not a hypothetical; it has happened before, and the Supreme Court has said it is not condoning what happened but that the prosecutor cannot be sued. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)

On the judicial history of absolute immunity, Neily said it was invented out of whole cloth by the Supreme Court, in what he believed was a 1976 case called Imbler v. Pachtman. He said it purports to be an interpretation of Section 1983, which says that all state actors shall be liable to the person injured for the deprivation of any right. The Supreme Court, besides inventing qualified immunity, somehow saw in that language an exception for prosecutors who commit misconduct on the job and harm people as a result. He called this a pure example of judicial activism, making up policy that the Court thought would have been better than what Congress came up with. Judicial Round-Up with Clark Neily (2022)

Zadek asked whether the Court’s reasoning was based on constitutional law or on the policy concern that we won’t get good prosecutors. Neily said it was a little of both—the Court did a stone soup thing, suggesting that certain officials could not be sued back in the day and prosecutors are kind of like those officials. He said it is not at all persuasive, and that Justice Stevens wrote a dissent that destroys the majority’s attempt to conjure up this kind of history. He called it a nakedly policy-oriented decision, based on the view that because prosecutors are constantly going after people, those people would push back and sue them, making the job hard. He called it another disaster, totally indefensible, and said the number of people whose lives have been destroyed by misbehaving prosecutors is incalculable. Judicial Round-Up with Clark Neily (2022)

Proposed remedy: privatization and insurance

Zadek asked whether Neily’s solution for absolute immunity would be the same as for qualified immunity—to privatize it and let officials be exposed for their bad acts, insuring against liability. Neily said he thinks that would work. He noted that prosecutors say they almost never commit misconduct and are as free from misconduct as any job one could name. If that is taken at face value—though he said he is not sure it should be—then their liability exposure would be close to zero because they never mess up. He observed that prosecutors are the ones who will say they almost never mess up. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)

Across episodes

Both episodes—the July 4, 2022 judicial round-up and the July 8, 2022 episode on Dobbs and qualified immunity—cover the same two topics: the Dobbs decision and the doctrines of qualified and absolute immunity. The excerpts show no development between the earlier and later treatment; Neily advances the same arguments in both, and the second episode repeats the first episode’s discussion of absolute immunity nearly verbatim. Judicial Round-Up with Clark Neily (2022) Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)

What the sources do not cover

The excerpts do not state Neily’s educational background, the date he joined the Cato Institute, or any prior positions he held. They do not describe the facts or holding of Imbler v. Pachtman beyond Neily’s characterization, nor do they identify the specific constitutional amendments at issue in the immunity cases. The excerpts also do not cover Neily’s work on gun rights, civil forfeiture, or over-criminalization beyond listing those as his areas of scholarship.

Episodes

3 appearances, 2020–2022.

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