Last week the Supreme Court vacated two horrible decisions from the Fifth Circuit. Last year, the Fifth Circuit held that a civil rights protester can be held liable for a peaceful protest in which an unidentified person throws a rock, but identified government agents cannot be held liable for making a prisoner sleep naked in a feces-covered cell for six days. It is not an accident that the Fifth Circuit issued these two seemingly conflicting decisions on liability last year. Although the Fifth Circuit has long been conservative, Senate Republicans refused to allow President Obama to fill several vacancies on the court, and thus Trump has substantially reshaped the court. Trump has appointed five of the Fifth Circuit’s 17 active judges. There are currently 11 GOP nominated judges and just four Democratic nominees. The Fifth Circuit today previews what other courts will look like when and if Trump is permitted to continue his project of capturing federal courts. These two decisions by the Supreme Court vacating decisions by the Fifth Circuit are a small bright spot, not just because the Fifth Circuit decisions were horrible, but also because perhaps we can hope that although we have lost the Supreme Court, they may not simply rubber stamp decisions issued by Federalist Society lower court judges.

McKesson v. Doe is a lawsuit filed by a Baton Rouge police officer who alleges that he was injured during a BLM protest organized by DeRay McKesson. After lengthy litigation, the Fifth Circuit held that McKesson could be held personally liable for damages on the theory that he negligently staged the protest, and thus indirectly caused the alleged assault on the officer. Civil rights groups widely argued that McKesson v. Doe was a horrible decision and was wrongly decided; the First Amendment protects organizers of protests from being held personally liable for alleged injuries caused by third parties. Without addressing the First Amendment issue, the Supreme Court vacated the lower court’s ruling and remanded for something called “certification.” Certification is when a federal appeals court essentially rules on a constitutional issue before a lower court decides a case in which the issue is implicated.

Here, the Supreme Court directed the Louisiana Court of Appeals to certify to the Louisiana Supreme Court whether 1) McKesson could have breached a duty of care in organizing and leading the protest, and 2) the officer sufficiently alleged a particular risk protected by the duty of care, provided one exists. Essentially, plaintiffs first have to show that McKesson would be liable under Louisiana tort law, regardless of any First Amendment protection. While this is unquestionably a better outcome than if the Supreme Court had denied cert (essentially tacitly endorsing the Fifth Circuit’s horrible opinion) it’s not clear that the outcome will be in any way altered.

In another order issued last week, Taylor v. Riojas, the Supreme Court vacated the Fifth Circuit’s grant of qualified immunity to officers who forced a prisoner to sleep in a feces-covered cell. Importantly, in granting cert and vacating the Fifth Circuit decision, the Supreme Court has opened a small crack in the so-far impenetrable doctrine of qualified immunity. In this case, the lower court ruled that although the health risk of leaving someone naked for six days in a cell covered in human waste was “obvious,” because there was no prior case that specifically held that, the prison officials could not be sued. The Supreme Court today vacated that decision and held that “any reasonable officer” should have realized that such conduct violated the constitution, despite the fact that there was not prior caselaw specifically on point.

One of the most frustrating aspects of litigating against the doctrine of qualified immunity (which is a judge-created doctrine that prevents government agents from being held liable for violations of constitutional rights) is that courts have held over and over again that unless there is a prior case directly relevant to facts of your case, the government agents cannot be held liable; usually, unless you can point to a prior case that has exactly the same set of facts as what you’re litigating, it is impossible to hold government actors liable for their bad conduct because, according to the doctrine, it is reasonable for them not to know that their conduct was unconstitutional.

However, Hope v. Pelzer, a case that the Supreme Court cited as the basis for vacating the Fifth Circuit’s decision in Taylor, is the rare qualified immunity case that holds the opposite; Hope holds that a case directly on point is not always needed to find government agents liable: “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question.” This tiny window wherein the Supreme Court has admitted that sometimes it is possible to find that some conduct is so unreasonable as to presume that the government actor knew it would have violated the constitution provides a small way forward in attempting to hold government actors liable for their conduct.