Academic journal article Notre Dame Law Review

The Branch Best Qualified to Abolish Immunity

Academic journal article Notre Dame Law Review

The Branch Best Qualified to Abolish Immunity

Article excerpt


The critics and critiques of qualified immunity--the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right" (1)--are by now legion. The Supreme Court has several times revised the doctrine in response to criticism and concern; each of these efforts has opened the doctrine up to new criticisms or exacerbated preexisting problems. Qualified immunity has been attacked as a historical; unjustified as a matter of statutory interpretation; grounded on inaccurate factual assumptions; antithetical to the purposes of official accountability and of the statute of which it is putatively a part; unadministrable; regularly misapplied; a hindrance to the development of constitutional law; a basis for strategic manipulation by judges; and a source of jurisdictional problems. (2) As Professor Baude has noted, the chorus of dissent from the doctrine is growing louder of late:

Recently publicized episodes of police misconduct vividly illustrate
the costs of unaccountability. Indeed, the NAACP Legal Defense Fund has
explicitly-called for "re-examining the legal standards
governing... qualified immunity." The legal director of the ACLU of
Massachusetts has named the doctrine of qualified immunity as among the
policing precedents that "we must seek to tear down." Judge Jon Newman
has argued that "the defense of qualified immunity should be abolished"
by Congress. (3)

Amidst these concerns, qualified immunity appears ripe for yet another revision or perhaps even abolition. Surprisingly little attention, however, has been paid to the question of how significant doctrinal reform should be achieved--and specifically which branch of the federal government is best situated to devise and implement such reform.

The answer is not immediately clear. Many of the Supreme Court's refinements to the doctrine over the years have been in the nature of common-law tweaks and glosses; the last major change was in the adjudicatory process for qualified immunity, (4) not the substance of the qualified-immunity test, so it might be considered mainly an exercise of the Supreme Court's supervisory authority over the federal courts. The last major substantive amendment to the doctrine resulted from a Supreme Court decision more than thirty-five years ago--without discussion of the propriety of judicial reformulation or separation of powers. (5) Since that revision, the Supreme Court has professed increasing concern about trenching on congressional prerogatives when it comes to defining remedies for civil rights violations. (6) But Congress has barely touched [section] 1983 in the half-century since the Court began recognizing the qualified immunity defense. (7) Thus, the precise locus of responsibility for modifying or abolishing qualified immunity has been left unclear.

This Essay poses the question squarely: If qualified immunity is to be changed, corrected, or abolished, which branch should do it?

The question is one that requires the application of familiar separation of powers and institutional-competence arguments in the context of an unusual doctrine with an unusual history. Ordinarily, given that qualified immunity is a product of statutory interpretation rather than constitutional elaboration, changes to its substance would be the responsibility and prerogative of Congress. The Supreme Court has expressed a special reluctance to overrule its decisions concerning the interpretation of a statute. (8) And as noted, the Court has been increasingly hesitant to expand civil rights remedies in the absence of express direction from Congress.

Nonetheless, I argue that characteristics peculiar to qualified immunity render the Supreme Court specially--though not, to be clear, exclusively--qualified to apply substantive reforms or even abolish the doctrine. …

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