The Branch Best Qualified to Abolish Immunity

Scott Michelman*

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”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in favor in leaving to Congress the task of reform?

I argue that they do not. In light of the Supreme Court’s persistent and pervasive involvement with the development of all aspects of modern qualified immunity doctrine, from its content to its scope to the manner and timing of its assertion and resolution in the courts, qualified immunity has become a special province of the Court rather than a mere byproduct of statutory interpretation that should be corrected (if at all) by Congress. The Court is best positioned to understand the effects of the doctrine on the development of constitutional law.

Moreover, the criteria to which the Court traditionally looks in deciding whether it should overrule a precedent counsel in favor of judicial reform. The factual and legal foundations underlying qualified immunity have been eroded. The doctrine is unworkable, producing contradictions and confusions and stultifying the development of constitutional law. Although it is reasonable to assume that officers and municipal governments rely on the protection of qualified immunity for the protection of municipal coffers, the Court should not, and in prior cases did not, afford weight to a reliance interest in violating the Constitution. From Pierson to Pearson, qualified immunity is a mess of the Supreme Court’s making, and the Supreme Court should clean it up.

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© 2018 Scott Michelman. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Shikes Fellow in Civil Liberties and Civil Rights and Lecturer on Law, Harvard Law School, and Senior Staff Attorney, American Civil Liberties Union of the District of Columbia. The views expressed here are my own and do not necessarily represent the views of the ACLU of the District of Columbia, its members, its board, or its staff. I am grateful for the insights of Baher Azmy, David Cole, Matt Segal, and Art Spitzer in thinking through the ideas in this piece, and for the thoughtful and detailed feedback of Karen Blum, David Cole, Jon Gould, and Joanna Schwartz on the manuscript. Any errors are mine alone.