When Penguin and Random House announced in the fall of 2012 that they intended to merge, Hurricane Sandy was barreling toward New York City, America’s publishing capital. It was an instant metaphor for headline writers: “As Sandy Loomed, the Publishing Industry Panicked.” People inside both companies worried about their jobs; people outside the companies worried about the market power of a new conglomerate comprised of the country’s two largest trade publishers. Agents and authors, meanwhile, worried that the consolidation would further drive down advances.
Random House’s top brass insisted that there was no need to panic. “The continuity will far outweigh the change,” Markus Dohle, the CEO of what would become Penguin Random House, told The New York Times when the merger was completed the following summer. “We have the luxury to take the time before we make any strategic decisions. There is no need to rush.”
This has been the story of Penguin Random House these past five years. Privately owned, the company has moved deliberately, while publicly traded competitors like HarperCollins (which is owned by News Corp) and Simon & Schuster (CBS) have had to fend off pressures from shareholders. It has not used its gargantuan size—it controls more than half of the traditional literary marketplace according to many estimates—to take back territory from Amazon. Instead, it has focused on building equity and ensuring that it publishes the next generation of bestsellers. In so doing, Penguin Random House has built what may be the perfect corporate publishing house. There’s just one problem: Thanks to Amazon, the age of the imperious corporate publishing house is coming to an end.
In July of this year, on the fifth anniversary of the merger, Dohle took a victory lap. Publishers Weekly touted Penguin Random House’s size ($3.4 billion in sales, 275 imprints, 700 million books sold a year, 14,000 new releases, 10,000 employees), prestige (60 Nobel laureates), and the seamlessness of the merger itself. Given the size of the two companies involved, it had the potential to be a logistical and cultural nightmare. But according to Dohle, it was an organic effort. “We literally designed and implemented the merger together as a team without all of the consultants and external advisers of usual mergers,” Dohle told Publishers Weekly. “Doing it our way meant that the new Penguin Random House became ‘our’ company. Designed and implemented by us.”
The point of a Penguin Random House is to create scale. It is larger than its four biggest rivals combined, and its sheer size gives it leverage to promote and sell books. “We are able to leverage scale in direct marketing to consumers and in our supply chain to support our retailers and to get our books into the hands of readers quickly,” Penguin Random House spokesperson Claire Von Schilling told me in an email. “We have the largest book sales force in the world, with unparalleled reach into every different kind of bookseller globally.”
Penguin Random House’s digital marketing and data efforts are the envy of the industry, which in many ways still publishes books way the same way that it did 50 years ago. Penguin Random House uses consumer data and information from Goodreads to help acquire prospective bestsellers, which then get the promotional benefits of Penguin Random House’s size and influence. Corporate publishing in the 21st century is driven by bestsellers—both the backlist (older books) and the midlist (non-bestsellers) have never had less impact, making it all the more important to score big hits.
When it comes to digital marketing, customer acquisition, and data analysis, little is being left to chance. That fastidiousness was also evident in the nearly imperceptible way that the merger was undertaken. There have been more layoffs than the media coverage would suggest, and redundant imprints have been shuttered. There is some concern, particularly after the company announced an early retirement buyout earlier this summer, that further layoffs are on the horizon. But Von Schilling told me there were “no layoffs and no plans for any.” And there have been no Black Fridays, no major disruptions to business.
This is where being privately owned has been a major boon for Penguin Random House, allowing for a slow, smooth transition. But calling what happened a merger has never quite been accurate—Random House all but acquired Penguin. While many of Penguin’s imprints have been preserved, multiple former Penguin employees and agents told me that the company’s unique corporate culture—a confederacy of personality-driven fiefdoms—no longer exists.
The editorial independence of various imprints was of great concern for agents, who worried that a single publisher controlling more than half of the market in some genres, including literary fiction, would drive advances down. It’s difficult to determine the precise impact of the merger on advances, but it’s clear that the worst-case scenarios haven’t occurred. Despite some changes, Penguin Random House’s imprints still compete against one another for books in a system that angers some executives, but ultimately serves to further the company’s ultimate goal of increasing its likelihood of acquiring bestsellers.
Amazon is the most important subject in the publishing industry in 2018, as it has been for the last fifteen years, but Penguin Random House has consistently downplayed the Amazon threat. Asked if additional size has benefited the publisher in its dealings with retailers, Von Schilling responded, “That was not a purpose of the merger.”
Even before the merger, Random House treated Amazon more conservatively than its rivals. While the other five, for instance, were sued for antitrust violations for joining forces with Apple to fight Amazon’s e-book dominance, Random House kept its hands clean (Penguin settled with the Department of Justice less than two months after the merger was announced). To many, this was a savvy play. Penguin Random House’s remit, after all, is to sell books, not to go to war with its retail partners.
But others have expressed frustration with Penguin Random House’s timidity. The point of market share, they argue, is to exert influence over retailers and there is little evidence that Penguin Random House has done this in a meaningful way (though it’s possible that it does receive slightly better terms than its rivals). Still, Amazon has spent the past several years accruing significant power in the industry. It has further cemented its hold over bookselling. It has feuded with other conglomerate publishers, notably Hachette, while building up its own disruptive publishing arms. These include the Kindle Unlimited e-book subscription service, which has taken over genre publishing, and Audible, which has a stranglehold on audiobooks, the industry’s most important growth sector. When it comes to publishing, Amazon has arguably never been more powerful.
It’s possible that some master plan is afoot in the inner sanctum of Penguin Random House to bend Amazon to its will. In the meantime, Penguin Random House has spent the last five years perfecting the corporate publishing house, shoring up its ability to publish bestsellers. The problem is that in the age of Amazon that may not be enough. In the long term, perhaps the wisest move isn’t to build an organism that blends seamlessly with an aggressive retailer, but one that fights against it.
Virginia’s 9th congressional district, in the largely mountainous southwestern corner of the state, is one of the most conservative districts in the state—even the country. Cook Political Report says the district leans Republican by 19 points. Donald Trump won 68 percent of the vote there. It went for Mitt Romney and John McCain, and indeed every other Republican presidential candidate since 1964. When President Barack Obama travelled there in 2009 to build support for the Affordable Care Act, locals greeted him with protests. It is not a place any Democrat seems likely to win a race for Congress.
So Republican Congressman Morgan Griffith should, theoretically, have little trouble defeating Anthony Flaccavento this November. But the 9th district’s political history is more complicated than it seems, as reflected by Griffith’s own rise to power. He defeated Democratic incumbent Rick Boucher eight years ago with the backing of a newly powerful Tea Party movement. At the time, Boucher had represented the 9th for 28 years. The district’s Democrats now face the same quandary that confronts Democrats throughout these mountains: How can the party rebuild power in the Appalachians?
West Virginia’s Joe Manchin is one of the most conservative Democrats in the U.S. Senate, and thus embodies the old party doctrine that only conservative or moderate Democrats can reliably win in districts like Virginia’s 9th. But Flaccavento, a 61-year-old organic farmer and author, is running on Medicare for All, green alternatives to the coal industry, and abortion rights. Like Richard Ojeda in West Virginia’s 3rd congressional district, Flaccavento believes that progressive populism, not political moderation, can revive a flagging Democratic Party in rural America.
Ojeda recently campaigned for Flaccavento, crossing the state line in an expression of Appalachian solidarity. Ojeda’s race is a toss-up, or at worst leans Republican. But neither RealClearPolitics nor Cook Political Report rates the 9th as competitive. This also isn’t Flaccavento’s first run against Griffith. He lost to Griffith by 20 points in 2012.
But Flaccavento and his supporters say that this year is different, that the 9th is different. As evidence, his campaign cites internal polling that puts him within 7 points of Griffith. Flaccavento, who also supports stricter anti-trust regulation, a path to citizenship for DACA recipients, and an emphasis on rehabilitation over incarceration for opioid users, believes that Trump isn’t as popular as he used to be, even in western Virginia, and that Griffith’s political credit is running out.
“When I ran six years ago, Mr. Griffith was a first-term incumbent. So people were still kind of checking him out and giving him the benefit of the doubt,” he told me. “Now he’s been here for eight years, and people are no longer giving him the benefit of the doubt. They’re wondering what he’s doing.”
The Fighting 9th, as it’s called, is large. At more than 9,100 square miles, it’s larger than the state of New Jersey, but just 700,000 people live within its borders. It takes up the state’s entire Appalachian west, beginning just west of Roanoke and touching the borders of West Virginia, Tennessee, North Carolina, and Kentucky. The southern region of the district is historically agricultural; coal lies to the north. A successful insurgent will have to cover that distance, closing gaps both physical and political. To that end, Flaccavento has pledged to hold 100 town halls before polls open in November; his campaign says that as of today, he’s completed 80.
“It takes eight hours to traverse the entire district and in addition, it’s not very well populated. So in order for somebody to try and unseat an incumbent, you have to be able to put in a lot of miles on your car and wear out a lot of pairs of shoes,” said Delegate Chris Hurst, a Democrat in the General Assembly who represents the city of Radford and surrounding areas, which are in the 9th.
As the geography of the district defies easy generalities, so does its political identity. Trump has widespread support, but since he took office in 2016, regional loyalty to the president hasn’t always guaranteed victories for Republican candidates. Hurst defeated a Republican incumbent for his seat in 2017. And while Virginia’s western counties backed Republican Ed Gillespie for governor, data published by The New York Times after the conclusion of 2017’s gubernatorial race showed a shift toward blue: Ralph Northam, who defeated Gillespie, outperformed Hillary Clinton’s share of the 2016 vote in the 9th district.
The district’s historical voting patterns are idiosyncratic. In the coalfields, the United Mineworkers of America has long been an important vehicle for turning out Democratic votes. Bob Hutton, a professor of history at the University of Tennessee at Knoxville and the author of Bloody Breathitt: Politics and Violence in the Appalachian South, said the region’s Democratic support didn’t end with the coal counties. “We talk a lot about the mining districts up there on the West Virginia and Kentucky line,” he said. “You don’t often hear as much about the smattering of family farms that were still in existence... And those were farmers who had voted Democratic for the most part since the Great Depression, if not before.”
But they were also split-ticket voters. During Rick Boucher’s 28 years as the Democratic representative for the 9th, his constituents voted for Republican presidents. “Rick Boucher is from Washington County, Virginia,” Hutton said. “During that time, his hometown was never once carried by a Democratic president. In fact, Washington County hasn’t been carried by a Democratic president since 1964.” Griffith’s 2010 victory didn’t represent a Republican realignment, at least at the federal level, so much as it represented a solidification of Republican support.
Over the past decade, the state has shifted left in presidential and statewide elections—thanks largely to population growth in the northern half of the state, from Richmond to Washington, D.C. The question is whether western Virginia also will turn blue, or at least less red.
“I think the reason that Trump does well here is largely for the same reasons that he was able to carry five districts in places like Pennsylvania and Wisconsin that had traditionally voted Democratic. You know, working people have historically looked to the Democratic Party as the party that offered solutions to their problems. And rightly so,” Boucher said in a phone call. He added that there’s “a fine line” between “working person sentiment” and the sort of populism Trump claimed to espouse, and that while Trump’s version was popular in the 9th, his success there doesn’t indicate that the district fundamentally changed in 2016.
“I think a Democrat who can talk about real problems in the community and ways to solve those problems, who really understands what the needs of working people are and who announces programs that will address those needs, has a very good chance of winning,” he said. “That is exactly who Anthony is.”
Like Hutton, I grew up in Washington County, where Flaccavento also farms. (None of us have met.) The Appalachian Regional Commission says Washington County’s economy is in “transition,” which means that its economy has improved while some surrounding counties still struggle. Even so, its rate of adults out of work is still significantly higher than the national average, according to the Economic Innovation Group, and life spans are shorter. Go north, up through the coalfield counties, and the poverty levels increase as employment levels decrease. There are bright spots in the district; the counties on the district’s eastern edge are better off economically than many counties to their west. The district might not be monolithic, but its inequalities are prevalent. Opioid addiction, black lung, depopulation—the 9th experiences it all.
The 9th district has, at times, turned to the political left to address its troubles. The region’s political history, like that of its neighbor, West Virginia, includes a tradition of militant labor organizing against the coal industry’s exploitative practices. And since 2016, progressives established a more visible presence, which could count in Flaccavento’s favor.
“I do think there has been an uptick in people willing to call themselves progressive,” said Robert Kell of Young Appalachian Patriots, a political group that formed as a response to Trump (and whose name intentionally echoes the Young Patriots Organization, a left-wing collective of Appalachian migrants in Chicago a half-century ago.) “I grew up in Marion, and I felt like there weren’t a lot of young progressive people in high school. But now that I’ve moved away and then come back, I feel like the vast majority of young people I know are progressive-leaning. When they talk about issues, they talk about issues in a way that that draws from their personal story. It demonstrates that they are very aware of the ways in which certain policies shape their lives.”
Kell cited Medicaid expansion, which the state General Assembly passed this year, as an example. “People have that real-life experience of waiting in line in Wise County to get their eyes checked and their teeth checked or get their diabetes under control. Sometimes they learn they have cancer for the first time in a barn,” he said, referring to the area’s free Remote Area Medical Clinics, which convene semi-regularly at the Wise County fairgrounds. Clinicians conduct some exams and treatments in a nearby horse barn due to space constraints. “When a candidate like Anthony comes and says, ‘Hey, you deserve to have healthcare, you deserve to be able to go to the doctor and have your health needs covered,’ I think people begin to understand that and really resonate with that message,” he added.
Meanwhile, Griffith’s critics say that his presence in the region has been sparing. He’s held a handful of town halls in the district since taking office; he held one in August in conjunction with the local chapter of the NAACP, according to Karen Jones, the chapter’s political action chair. “But those were pre-prepared written questions that he was provided. He took written questions from the audience, but that was just our members,” said Jones, who has been canvassing and phone-banking for the Flaccavento campaign. “So if you’re kind of outside of a member group or organization that he’s speaking in front of, I haven’t seen any open events for constituents to come to.”
Griffith, whose campaign did not return requests for comment, has lost at least one supporter as a result. Chris Church works at Bristol Compressors, or will until the end of the month; the plant is set to close on September 30, putting 470 people out of work. Church, who says he voted for Griffith (and Trump), credited Flaccavento for promptly reaching out to the plant’s workers, meeting with a group of them on August 16, six days before Griffith arrived to do the same; the Democrat also set up a helpline “to inform workers of their legal rights,” the Washington County News reported at the time. “He came and talked to us for a good hour and a half. He took a lot of notes,” Church said of Flaccavento. “And I have nothing against Morgan Griffith, but he has showed us no concern, other than [saying] ‘We’re looking into it. We’re looking into it.’” Church now says that he supports Flaccavento, as do a number of his coworkers.
Griffith’s absenteeism may not be enough to tip the race in Flaccavento’s favor. The Republican congressman can cite some achievements: In May, he harshly criticized opioid distributors for failing to report suspiciously large orders for painkillers. And in a September interview with The Virginian Review, he said that the “balanced regulations” he supports have saved local businesses like the WestRock paper mill in Covington, Virginia. He has $411,539 on hand to Flaccavento’s $100,762. Griffith also votes mostly in line with Trump, who is still popular with district voters.
But Flaccavento, who founded a consulting firm that advises communities on building farmers’ markets and supporting organic agriculture, believes his “rural progressive platform” can win them over. “I am very much a progressive. I am not a Joe Manchin Democrat one bit,” he said. “It really starts with the land, and it starts with people’s connection to the land, whether they’re farming or logging or fishing or hunting or mining. It starts with the thinking that whatever we do, and how many resources we put into protecting the land, we have to give the same attention and resources to ensuring that people can have a decent life.”
In October 2013, two investigators from the Texas Medical Board arrived at Dr. Joseph Zadeh’s medical practice in suburban Dallas with an administrative subpoena for the medical records of more than a dozen patients, joined by two DEA agents. When a medical assistant told them that she would need to contact a lawyer first, they said Zadeh’s license was at risk if she didn’t comply immediately. She backed down, and they rooted through Zadeh’s patient files for evidence of wrongdoing—all without a proper search warrant.
Zadeh and an unnamed patient thus sued the board in federal court. The Fifth Circuit Court of Appeals agreed that the board had violated Zadeh’s rights with the warrantless search. But it ruled against him nonetheless. The court found that under the Supreme Court’s precedents on qualified immunity, a legal privilege for certain types of government officials, the violation of Zadeh’s rights wasn’t “clearly established” under existing legal precedents.
The ruling drew an unusual concurring opinion from Judge Don Willett, a widely respected conservative jurist who is on President Donald Trump’s original shortlist for Supreme Court nominees. Willett labeled his concurrence as “dubitante,” a Latin legal phrase used by judges to signal misgivings about their own rulings. He argued not that his court had incorrectly applied Supreme Court precedents, but that those precedents are the real problem. “The court is right about Dr. Zadeh’s rights: They were violated,” he wrote. “But owing to a legal deus ex machina—the ‘clearly established law’ prong of qualified-immunity analysis—the violation eludes vindication.”
Willett’s opinion adds to the growing criticism of how the Supreme Court has shaped qualified immunity over the years. This burgeoning pushback includes two of the high court’s justices, and an unlikely pair at that: conservative Clarence Thomas, who has signaled his displeasure on originalist grounds, and liberal Sonia Sotomayor, who has objected to the doctrine’s tendency to protect public officials in cases of clear wrongdoing.
Qualified immunity isn’t in mortal danger yet, but the ranks of powerful opponents to it are growing. If the doctrine is eventually weakened or even eliminated, it would expand citizens’ right to seek remedies against public officials, including police officers, who have wronged them—and could prevent future constitutional wrongs.
To understand qualified immunity, think of a Russian nesting doll, but with layers of legal doctrines and exceptions. Start with the general principle: If one person is wronged by another, they may be able to seek a remedy from the courts. There’s an exception, however, that shields the government and its agents from liability for their official acts. Section 1983 carves out an exception to that exception by waiving the shield. It allows lawsuits in federal court against state and local officials who violate federal constitutional rights while acting “under the color of” law. It was under this section that Dr. Zadeh and his unnamed patient tried to sue the Texas Medical Board.
Over time, the high court has added its own layer of exceptions to Section 1983. Some groups of public officials, such as legislators, judges, and prosecutors, enjoy absolute immunity from lawsuits related to their official acts. (The first two categories are generally accepted on constitutional grounds, while the third is more controversial.) Other public officials enjoy a more qualified form of immunity that can be overcome in certain circumstances. Qualified immunity, the court says, helps shield public officials from financial burdens and the stresses of litigation related to their official duties—unless the claim is merited, of course.
How can courts tell when a violation of constitutional rights is justified enough to overcome qualified immunity? The Supreme Court tells lower courts to determine whether the violation ran counter to “clearly established law,” a term that the justices interpret in the narrowest possible ways. Willett signaled that he found the premise absurd because it effectively requires that there be precedent for every imaginable constitutional violation, otherwise the offender can’t be held responsible. “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly,” he wrote. “Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question ‘beyond debate’ to ‘every’ reasonable officer.”
Qualified immunity’s impact radiates beyond each individual case that it thwarts. The doctrine’s flaws might be mitigated if the Supreme Court provided better guidance on what amounts to “clearly established law,” for example. But another problem, Willett explained, is that courts are no longer required to determine whether the act in question actually violated the Constitution in qualified-immunity cases. Instead, judges can simply cite the lack of existing precedent and end the inquiry there. The result is “constitutional stagnation” for American law as well as a Catch-22 for would-be litigants, he concluded.
“Plaintiffs must produce precedent even as fewer courts are producing precedent,” Willett wrote. “Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.”
Section 1983 is a bulwark of American liberty. Named for its place in the U.S. Code, the provision traces back to Reconstruction and the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. Federal efforts to build a multiracial democracy in the South after the Civil War faced violent resistance from armed groups of ex-Confederate veterans, notably the Klan, which frequently acted with tacit support from local officials. They waged a domestic-terrorism campaign by killing black Americans and white Republicans, burning down their homes and churches, and intimidating local communities into accepting white-supremacist rule.
The Klan posed an unprecedented threat to American democracy, and the government armed itself with unprecedented powers in response. The Ku Klux Klan Act gave federal prosecutors new powers to charge and convict Klansmen who tried to intimidate black voters and candidates. It also included the provision now known as Section 1983, which gives private citizens a mechanism to sue state and local officials for violating federal constitutional rights in their official capacities. It was bold legislation by any era’s standards, and not without its critics. Democrats denounced Grant as a would-be dictator who governed the South by military rule. “The Ku Klux Klan Act pushed Republicans to the outer limits of constitutional change,” historian Eric Foner wrote.
The new tools allowed Grant and the newly created Justice Department to smash the Klan for a generation. Many of those tools were later taken away by the Supreme Court, which narrowly interpreted the Reconstruction Amendments and weakened the federal government’s power to enforce them. “The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees,” The Atlantic’s Adam Serwer recently observed. But Section 1983 itself survived, dormant but intact.
Its reawakening came during the Second Reconstruction in the 1960s. In the 1961 case Monroe v. Pape, a black family and their six children in Chicago sued the city’s police department for carrying out a warrantless nighttime raid on their home. “The police officers broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers,” Justice William O. Douglas later recounted in the court’s majority opinion. Officers hauled the father in for interrogation about a recent murder, held him without access to a lawyer, and eventually released him without charges.
The court reaffirmed that the lawsuit fell within Section 1983’s original purpose and design. “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies,” Douglas noted. The court’s ruling in Monroe sparked new interest in using the 1871 statute.
At first, the Supreme Court said, public officials could cite traditional common-law defenses of good faith and reasonableness to overcome Section 1983 lawsuits. But the court abandoned those subjective defenses in 1982 for an objective formulation that survives today, and which the doctrine’s critics are challenging on multiple fronts. The Supreme Court has justified qualified immunity as a protection for government officials from the costs of litigation as well as the stresses of discovery and trial. But there doesn’t appear to be empirical evidence that it actually fulfills this purpose. Joanna Schwartz, a UCLA law professor, studied how courts applied the doctrine in five federal court districts. In the cases she examined, qualified immunity only led to dismissal before the discovery phase in 3.2 percent of the cases where it was raised.
Schwartz noted that the low dismissal rate doesn’t reflect qualified immunity’s overall impact. First, she argued, the Supreme Court’s habit of upholding it at almost every opportunity may send a message to law-enforcement officers that they can act with impunity. Second, she noted that qualified immunity may act as a deterrent in challenging other violations of constitutional rights. Finally, she warned that the court’s current approach could undermine police departments’ ability to properly train officers. “When the Supreme Court suggests that only its decisions can clearly establish the law, and then repeatedly grants qualified immunity without ruling on the underlying constitutional questions, law enforcement agencies have little in the way of guidance about how to craft their policies,” Schwartz wrote earlier this year.
Justice Sonia Sotomayor in particular has raised concerns about the impact of the court’s qualified-immunity rulings when it comes to police shootings. “As I have previously noted, this Court routinely displays an unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervenes where courts wrongly afford officers the benefit of qualified immunity in these same cases,” she wrote in a dissent in the 2018 case Kisela v. Hughes. “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”
The doctrine is also under siege from originalists, who argue that the court’s purported historical basis for qualified immunity appears to be groundless. In a 2017 article, University of Chicago law professor William Baude noted that the court typically advances three justifications for the doctrine. “One is that it derives from a common law ‘good faith’ defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides ‘fair warning’ to government officials, akin to the rule of lenity,” he wrote. But Baude found those arguments wanting: “There was no such defense, there was no such mistake, and lenity ought not to apply.”
In the 2017 case Ziglar v. Abbasi, Justice Clarence Thomas wrote a concurring opinion that cited Baude’s work and echoed his concerns. “Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in ‘interpret[ing] the intent of Congress in enacting’ the Act,” he wrote, paraphrasing other cases. “Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” He suggested that the court should revisit the issue “in an appropriate case.”
The problems with qualified immunity mirror a deeper and more disturbing trend in the law. Courts, which are supposed to be the great vindicators of Americans’ rights and liberties, are increasingly closed off to them. For instance, the U.S. legal system grants prisoners the right—known as habeas corpus—to challenge the constitutionality of their imprisonment, including the trial and sentencing phrases that placed them there. But in 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act, which imposed new limits on habeas petitions and sharply raised the legal thresholds for them to succeed. The changes led to a sharp and deleterious drop in successful legal challenges by defendants in federal courts.
Defendants who go on trial are already rare. Contrary to portrayals of the criminal-justice system in Law & Order and other legal procedurals, the overwhelming majority of people charged with a crime never make their case before a jury. More than 90 percent of felony convictions are now obtained through plea bargains instead. The coercive power of harsh sentencing laws—and the promise of a lighter punishment to avoid them—gives prosecutors so much power that some critics fear many innocent people are pleading guilty rather than risk a trial, especially if they lack the resources to defend themselves. Federal judge Jed Rakoff noted in 2015 that roughly 20,000 federal prisoners may be actually innocent if the limited available data on exonerations is extrapolated nationwide.
Would-be litigants also face tougher hurdles in civil cases. Two recent decisions that largely escaped public notice—2007’s Bell Atlantic v. Twombly and 2009’s Ashcroft v. Iqbal—lowered the legal threshold for judges to summarily dismiss civil lawsuits when the initial complaint isn’t detailed enough. The change had a palpable effect on civil litigation throughout the country, especially in cases that typically rely on the discovery process to find sufficient evidence. (Massachusetts Senator Elizabeth Warren recently introduced legislation that would restore the old pleading standard through federal law.)
In the private sector, companies increasingly use contractual clauses that require would-be litigants to submit to arbitration instead, an alternative to the judicial process that was meant to alleviate strain on the courts. The practical reality is an parallel legal system of sorts that often deprives workers of their ability to challenge discrimination, harassment, and wage theft. Earlier this year, for example, the Supreme Court signed off on clauses in employment contracts that thwart class-action lawsuits by forcing employees into closed-door arbitration instead. “The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers,” Justice Ruth Bader Ginsburg warned in her dissent.
The broad, cross-ideological push against qualified immunity is a rare step in the right direction, but any reform of the doctrine relies on the Supreme Court. The justices have multiple options if they take up a case where they can reconsider qualified immunity itself. The first, of course, would be to leave it intact. Baude noted in his 2017 article that the court is usually reluctant to overturn its own precedents when they interpret federal statutes instead of the Constitution. “Because qualified immunity has been on the books for years and Congress has declined to revisit it, it may have obtained a belated congressional imprimatur,” he wrote.
The doctrine’s questionable justifications could help the court overcome that reluctance, however. That would allow the justices to either eliminate qualified immunity altogether, substantially narrow its scope, or justify it on other grounds. “Plaintiffs should be able to defeat a qualified immunity motion by pointing to evidence of an officer’s bad faith,” Schwartz wrote earlier this year. “And the Court should broaden its definition of clearly established law—by making clear that courts of appeals can clearly establish the law, by defining clearly established law at a higher level of factual generality, and by recognizing obvious constitutional violations [...] without reference to an analogous case.”
Those suggestions may provide the court with a good starting point. “Doctrinal reform is arduous, often-Sisyphean work,” Willett observed in last month’s concurrence. “And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.”
In Paris, a highway called “the periphery” separates the privileged in the city from the marginalized “banlieues” or suburbs. Some residents of the banlieues even joke that they may as well need a passport to cross. But as students around the country head back to school this month, thousands of teachers are set to traverse this line, heading into some of the most underprivileged school districts in the country.
The national education reforms being implemented this fall in France—including cutting class sizes, adding more evaluations, and banning mobile phone use—are the latest attempt by the government of Emmanuel Macron to close the staggering school performance gap between low-achieving students, who often live in the banlieues, and wealthier, predominantly white students. Macron’s government has heralded the reduction of certain primary school class sizes from 24 students per teacher to 12 students as a flagship reform—one that he started rolling out in 2017 and that he promises will transform public education, pouring teachers into the nation’s underperforming schools. Yet at the heart of the plan lies a questionable assumption: that the achievement gap in the banlieues can be solved through education reform alone.
In fact, the banlieues’ lagging academic performance is entangled with issues affecting low-income areas almost everywhere: low wages, high unemployment, and perhaps above all, systemic segregation. Institutional racism and a French system of social cachet created this problem decades ago. Some experts fear that the new measures are not so much a Band-Aid on a gaping wound (insufficient and ineffective) as bad medicine—liable to cause further damage.
Of the 72 countries surveyed, France was the country where a student’s social, economic, and cultural background had the greatest effect on school performance.“I think the proposed reforms even risk increasing inequalities,” said Philippe Meirieu, a French researcher in pedagogical science at the University of Lyon and a former left-wing political candidate. Adding more student evaluations, for instance, might only fill the most prestigious establishments with students who are labeled “good” from a young age, widening the lag with schools that are already struggling, according to Meirieu. He went so far as to call certain measures—including the option to switch from five days of primary school class per week to four—“catastrophic.” The measure was introduced primarily as a cost-saving technique, and its effect will be strongest in families where parents cannot afford to spend the day engaged in cultural or educational opportunities with their kids, giving wealthy children yet another advantage.
A survey by the Organization for Economic Co-operation and Development in 2015 found that of the 72 countries surveyed, France was the country where a student’s social, economic, and cultural background had the greatest effect on school performance. Just two percent of students from low-income backgrounds were among the top performers while 40 percent were characterized as struggling in school.
Many of those low performers come from the banlieues, which first emerged outside of urban centers like Paris in the post-war years, their towering housing projects welcoming an influx of immigrants from North Africa. In the following decades the banlieues increasingly became associated with crime, drugs, low employment, and most recently radical Islam. The link between the banlieue and radical Islam is often more correlative than causal, but certain strains of extremism resonate in the banlieue because they speak to a reality of exclusion.
The borders of the banlieue fall along racial and ethnic lines, perpetuating a cycle of institutional racism common to cities in many countries: immigrants and people of color are segregated in their housing options, end up in schools with fewer resources, and in turn have trouble finding good jobs. Without a good job, they are likely to end up in segregated housing projects, where their children are cycled through the same poor schools. The schools in low-income neighborhoods also tend to have the least experienced teachers, who are often ill-equipped to deal with learning or behavioral issues.
Unemployment levels in low-income neighborhoods in France are three times the national average, according to government statistics published in 2016. And residents’ qualifications don’t always help them: The same study found that residents from low-income areas who had a master’s degree were still 22 percent less likely to find a job than their metropolitan counterparts.
Social cachet plays a strong role in determining who succeeds in France. The Republic insists that its institutions are blind to race, ethnicity, and social class. Yet children who attend schools of a certain name, who are taken on cultural excursions from a young age, who are taught the specific codes of behavior endemic to French culture tend to do better—as do children with certain family names. A 2010 Stanford study found that a résumé submitted under a typically Muslim name like “Khadija” was two-and-a-half times less likely to receive a response than one submitted with identical qualifications under a non-Muslim name.
“We live in a country where equal human rights are declared in our constitution as a founding principle, and at the same time where school inequalities are structural. They have existed for a long time,” said Michel Kokoreff, a sociologist who has been studying the banlieues for more than three decades.
The government has made class size its signature reform effort. On the surface the idea seems unassailable, creating good media buzz. But it doesn’t address all of the other social and environmental factors that contribute to ongoing inequality.
Macron’s government has a history of denying the role played by race and ethnicity. In 2017, a teacher’s union attempted to host a two-day conference about “discrimination in the national education system,” open only to teachers of color. The education minister Jean-Michel Blanquer threatened to file a lawsuit against the union, claiming that even using the term “state racism” constituted national defamation.
For a former cabinet member under socialist President Francois Hollande, who himself campaigned relatively progressively in his presidential bid, Emmanuel Macron has proved a disappointment to leftists. The president has spent the past year attempting to situate himself as a new kind of politician, grandstanding on progressive causes like the environment, all while constructing a typically conservative agenda, including slashing labor protections and increasing executive power. Blanquer, a former high-ranking official in the Republican government of former President Nicolas Sarkozy, has similarly tried to rebrand himself.
“The important idea is that if we take the political agenda of Jean-Michel Blanquer and Emmanuel Macron as a whole, this measure is very isolated,” said Pierre Clement, a lecturer at the University of Rouen with a doctorate degree in sociology. “My fear is that that the government will stop its efforts here.”
Clement expressed some of the same fears as Meirieu, noting that these reforms could, paradoxically, make matters worse. He pointed to the move to allow families’ greater choice in where their children go to school (a promise first made by Sarkozy). Historically, greater choice in school is also accompanied by greater inequality, as this freedom often only serves to drain wealthier students from low-income districts who can afford to go somewhere else.
With the central structures kept intact, educational inequality will continue to flourish. And reforms that address the symptom and not the disease—namely, systemic inequality—seem likely to help politicians more than students.
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