RETHINKING THE ORDER OF BATTLE IN CONSTITUTIONAL TORTS: A REPLY TO JOHN JEFFRIES[dagger]

Article excerpt

INTRODUCTION

The Supreme Court's decision in Pearson v. Callahan1 ended an eightyear experiment in the adjudication of qualified immunity claims.2 That experiment began with Saucier v. Katz, in which the Court held that lower courts must decide whether a government officer violated a plaintiff's constitutional rights before addressing the question of whether the government officer was entitled to immunity.3 The Court's rationale for requiring lower courts to first address the merits was the need to clarify constitutional law for the benefit of both government actors (who could then better conform their behavior to constitutional standards) and future plaintiffs (who could then overcome the defense of qualified immunity and recover damages for their injuries).4 But Pearson overturned Saucier's mandate, holding that merits-first adjudication, while often appropriate, "should no longer be regarded as mandatory."5 The Court cited a number of reasons for its decision, including the detriment to judicial efficiency; the reality that principles articulated may be of little value, particularly if a higher court is about to pass on the same question or if the question involves state law; the difficulty of making law on uncertain facts when qualified immunity is asserted at the pleading stage; the concern that the government will be unable to appeal an unfavorable decision on the merits if it prevails on qualified immunity; and the contravention of the longstanding principle of constitutional avoidance. 6

I have previously argued that Saucier's merits-first approach was misguided. 7 I based my conclusion both on various analytic criticisms of mandatory merits-first adjudication8 and on an original empirical study indicating that the merits-first approach led disproportionately to the articulation of law-narrowing constitutional rights.9 In explaining the latter, I hypothesized that the close relationship between the merits and qualified immunity inquiries engenders cognitive disincentives for judges to recognize a constitutional violation yet grant qualified immunity.10 Unsurprisingly, I agree with the result in Pearson; my chief complaint is that the Court provided insufficient guidance to lower courts as to when they should decide the constitutional question.11

In a recent article, John Jeffries critiqued Pearson while engaging recent scholarship on qualified immunity, including my own.12 He expressed skepticism that the qualified immunity inquiry engenders cognitive disincentives to reach certain results.13 He also contended that Pearson failed to adequately analyze the competing interests embedded in the question of merits adjudication.14 Merits avoidance entails significant costs, which, in many instances, outweigh those of merits adjudication. First, if merits adjudication is not mandatory, judges may fail to resolve important constitutional questions.15 And second, in areas of the law where constitutional tort actions are the primary vehicle for articulating constitutional principles, merits avoidance may effectively narrow the scope of rights by rendering resolution perpetually indefinite.16 As he has argued elsewhere with respect to remedies,17 Jeffries advocated "disaggregating" the approach to lawmaking in § 1983 and Bivens actions by evaluating whether constitutional tort actions are the primary means of remedying violations in a particular doctrinal area.18 If they are, he believes, then merits adjudication in qualified immunity actions is both desirable and essential.19

Jeffries' article presents many valuable insights. I concur both with his characterization, also developed elsewhere, of qualified immunity as one way of removing disincentives for innovation20 and with his ongoing advocacy of an approach to constitutional torts that takes account of available alternative remedies.21 I write this brief reply in the hope that clarifying the points on which we do disagree will advance the broader discussion. …