Qualified immunity, the defense afforded to police officers and other government actors to civil rights claims under 42 U.S.C. § 1983, continues to be a hot-button issue when discussing police reform. The defense shields officers (and other government actors) even when they violate someone’s civil rights so long as the officer’s conduct does not violate “clearly established” law. To overcome a qualified immunity defense, the U.S. Supreme Court has required the “clearly established” law to be defined at a high level of specificity. In other words, an officer is unlikely to face liability unless past cases with very similar factual scenarios have already held that the officer’s conduct is violative of someone’s rights. This “clearly established” law test has faced significant scrutiny, most notably from the anchor of the Court’s current conservative wing, Justice Clarence Thomas.
Justice Thomas has called the Court’s current “clearly established” law standard into question on multiple occasions (see, e.g., Hoggard v. Rhodes, 141 S. Ct. 2421 (2021) (Thomas, J., statement respecting the denial of certiorari); Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (Thomas, J., concurring in part and concurring in the judgment); Baxter v. Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting from the denial of certiorari)). According to Justice Thomas, the Court’s “clearly established” law standard for qualified immunity is not rooted in the text or common law backdrop against which Congress enacted 42 U.S.C. § 1983 (Hoggard, 141 S. Ct. at 2421–22 (Thomas, J., statement respecting the denial of certiorari)). Rather, it is rooted in the Court’s attempt to balance competing values (see Ziglar, 137 S. Ct. at 1872 (noting that the Court has “acknowledged, in fact, that the ‘clearly established’ standard is designed to ‘protect the balance between vindication of constitutional rights and government officials’ effective performance of their duties’” (citation omitted)); Baxter, 140 S. Ct. at 1864 (noting that “the Court adopted the test . . . because of a ‘balancing of competing values’”)). As Justice Thomas notes, “The Constitution assigns this kind of balancing to Congress, not the Courts” (Ziglar, 137 S. Ct. at 1872). Thus, in coming up with the “clearly established” law standard for qualified immunity, Justice Thomas argues that the Court was not “engaged in ‘interpreting the intent of Congress in enacting’ the Act [giving rise to civil rights claims under § 1983]” (id. at 1871 (Thomas, J., concurring in part and concurring in the judgment) (citation omitted)). Rather, the Court’s “qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choices’ that we have previously disclaimed the power to make” (id.). In other words, in crafting the “clearly established” law test, the Court “substitute[d] [its] own policy preferences for the mandates of Congress” (id. at 1872).
Given that the Court’s “clearly established” law test for qualified immunity has stood for more than 40 years, one might think the Court is unlikely to hear Justice Thomas’s calls to reexamine the doctrine. However, the Court’s recent approach to stare decisis, as highlighted in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), seems to suggest that this Court is open (and some might say eager) to reexamine and potentially overrule a plethora of cases, including the “clearly established” law standard for qualified immunity.
A Five-Justice Majority Appears Ready to Shake Things Up
Before considering the possibility of the Court’s reexamining its qualified immunity jurisprudence, it is important to understand the Court’s current thinking on precedent and stare decisis as embodied by the majority’s decision in Dobbs. In Dobbs, a five-justice majority consisting of Justice Samuel Alito, Justice Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett overturned a half century of settled law giving women the right to an abortion. A discussion of the abortion right discarded in Dobbs is far beyond the scope of this article. However, Dobbs is remarkable not just because of the Court’s dramatic shift on abortion but also because it represents a potentially dramatic shift on stare decisis.
The maxim from Justice Louis Brandeis had long held: “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right” (Burnet v. Coronado Oil & Gas Co., 52 S. Ct. 443, 447 (1932) (Brandeis, J., dissenting)). But in Dobbs, the majority noted “that stare decisis is ‘not an inexorable command’” before making clear that at least in matters of interpretation of the Constitution, it viewed having the issue “settled right” in their eyes to be of paramount importance (see Dobbs, 142 S. Ct. at 2262 (noting that “when it comes to the interpretation of the Constitution . . . we place a high value on having the matter ‘settled right’”; the majority then went on to upset a well-settled constitutional precedent over three dissents and one concurrence in the judgment (Chief Justice John Roberts did not concur with the portion of the decision that completely discards the right to an abortion recognized in Roe v. Wade, 410 U.S. 113 (1973)))).
While the Dobbs majority claimed that its approach to stare decisis is nothing out of the ordinary, it very possibly marked a dramatic shift and highlighted that this five-justice majority does not feel restricted from overturning long-settled precedent if it believes that precedent is “egregiously wrong.” The Dobbs majority claimed that its decision to overrule Roe and Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992), was warranted by an application of “traditional stare decisis factors” and that it had not “abandoned” stare decisis (Dobbs, 142 S. Ct. at 2278–79). Needless to say, the three-judge dissent did not see it that way. To the dissent, the majority ignored “traditional principles of stare decisis” (id. at 2347 (Breyer, J., dissenting)) and instead “substitute[d] a rule by judges for the rule of law” (id. at 2335). According to the dissent, under the majority’s “cavalier approach to overturning [the] Court’s precedents,” “[t]he Court departs from its obligation to faithfully and impartially apply the law” (id. at 2320). Under this new approach, “proclivities of individuals rule” (id.), and any precedent is at risk of being overturned so long as “a bare majority of the present Court disagrees” with it (id. at 2335). It is worth noting that these five justices’ approach also appears to be out of step with Chief Justice Roberts’s preference for a “more measured course” (id. at 2310 (Roberts, C.J., concurring in the judgment); see also id. at 2349–50 (Breyer, J., dissenting) (noting that while the dissent disagreed with Chief Justice Roberts’s approach, “no one should think that there is not a large difference” between Chief Justice Roberts’s approach and that of the five-justice majority); id. at 2281 (the majority noting “serious problems” with Chief Justice Roberts’s “more measured course”)).
Legal commentators will no doubt wrestle with whether the majority, the dissent, or the chief justice has the better argument regarding the proper approach to stare decisis, and this article does not weigh into that discussion. Quite simply, the purpose of the above discussion is to highlight that this current five-justice majority appears more open to revisiting and overturning settled law.
The Paramount Importance of Reasoning to the Majority’s Approach to Stare Decisis
Before turning to how this new five-justice majority may approach qualified immunity, it is important to get an understanding of this majority’s approach to stare decisis as illuminated in Dobbs.
The five-justice majority identified five stare decisis factors, all of which the majority believed “weigh[ed] strongly in favor of overruling Roe and Casey”:
- The nature of the Court’s error in Roe and Casey;
- The quality of the Court’s reasoning in Roe and Casey;
- The “workability” of the rules Roe and Casey imposed on the country;
- Roe’s and Casey’s disruptive effect on other areas of the law; and
- The absence of concrete reliance on the Roe and Casey decisions.
Dobbs, 142 S. Ct. at 2265.
While the majority analyzed each of these factors to determine whether stare decisis should give way to allow for the overruling of Roe and Casey, the factor looking at the quality of the Court’s reasoning seemed to be the factor doing all the work (see Dobbs, 142 S. Ct. at 2280 (focusing the majority of its stare decisis analysis on the quality of the Court’s reasoning factor and noting that when “the Court issues an important decision that is egregiously wrong,” “stare decisis is not a straitjacket”); id. at 2335 (Breyer, J., dissenting) (“In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey ‘egregiously wrong.’ That rule could equally spell the end of any precedent with which a bare majority of the present Court disagrees” (citation omitted))). In fact, in analyzing the five factors over 12 pages, half of those pages were devoted to analyzing the quality of the reasoning. And before even getting to the stare decisis analysis, the majority had already spent much of its opinion attacking the reasoning of Roe and Casey in coming to its conclusion that there was no right to an abortion under the Constitution. Further highlighting the importance of this factor to this five-judge majority, the majority criticized Casey’s stare decisis analysis as problematic because it did not take this factor into account (see Dobbs, 142 S. Ct. at 2272 (noting that Casey “deployed a novel version of the doctrine of stare decisis” that “did not account for the profound wrongness of the decision in Roe”)).
In its lengthy analysis of the factor dealing with the quality of the Court’s reasoning in Roe and Casey, the majority kept coming back to what it perceived as Roe’s and Casey’s fatal flaw: The Court in those cases was not judging, but rather acting like a legislative body in weighing competing interests to craft a policy out of thin air (see Dobbs, 142 S. Ct. at 2266 (“The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might find in a statute or regulation.”); id. at 2266–67 (“Not only did this scheme resemble the work of a legislature, but the Court made little effort to explain how these rules could be deduced from any of the sources on which constitutional decisions are usually based.”); id. at 2267 (“After surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by legislative committee.”); id. at 2268 (noting that the Court engaged in “precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests” and that “[t]he scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body”); id. at 2270 (criticizing the Court’s assertion of “raw judicial power to impose, as a matter of constitutional law, a uniform viability rule”)). In fact, even in analyzing some of the other four stare decisis factors, the court kept coming back to the problem it had with Roe’s and Casey’s reasoning (Dobbs, 142 S. Ct. at 2275 (in discussing the workability factor, noting that Casey’s “undue burden” test was “[p]lucked from nowhere”); id. at 2277 (in discussing the reliance factor, noting that “the Casey plurality’s speculations and weighing of the relative importance of the fetus and the mother represent a departure from the ‘original constitutional proposition’ that ‘courts do not substitute their social and economic beliefs for the judgment of legislative bodies’” (citation omitted))).
Thus, going forward, it would appear that this five-justice majority is willing to overturn precedent if it believes the precedent suffered from poor reasoning. (It is worth noting that some scholars have questioned the wisdom of including a factor that looks at the quality of the Court’s reasoning in a stare decisis framework that purports to uphold the goals of stare decisis (see Randy J. Kozel, Settled Versus Right: A Theory of Precedent 118–21 (2017)). And key to this determination is whether this five-justice majority perceives the past reasoning to suffer from a fatal flaw: the Court abandoning its constitutional role to interpret the law and instead acting like a legislative body in weighing competing interests to craft rules.
The Court Should Heed Justice Thomas’s Calls to Reexamine Qualified Immunity
If the egregiousness of the Court’s prior reasoning as seen through the eyes of this five-justice majority really is the measure of stare decisis going forward, qualified immunity would appear to stand on incredibly shaky ground. The parallels between Justice Thomas’s criticisms of the Court’s crafting of the “clearly established” law test and the five-justice majority’s criticism of the reasoning of Roe and Casey are striking.
Justice Thomas’s most pointed criticisms of the reasoning that led to the “clearly established” law standard for qualified immunity are:
- The “clearly established” law test “cannot be located in § 1983’s text[,] . . . may have little basis in history[,] . . . [and is] not grounded in the common-law backdrop against which Congress enacted § 1983” (Hoggard, 141 S. Ct. at 2421–22).
- In crafting the “clearly established” law test, the Court engaged in “balanc[ing] competing values,” but “[t]he Constitution assigns this kind of balancing to Congress, not the Courts” (Ziglar, 137 S. Ct. at 1872). The Court “substitute[d] [its] own policy preferences for the mandates of Congress” (id.).
- In coming up with the “clearly established” law test, the Court “conjur[ed] up blanket immunity and then failed to justify [its] enacted policy” (Hoggard, 141 S. Ct. at 2422).
The five-justice majority’s most pointed criticisms of the reasoning that led to the decisions in Roe and Casey are:
- Roe’s reasoning lacked “any grounding in the constitutional text, history or precedent” (Dobbs, 142 S. Ct. at 2266–67).
- “[T]he Casey plurality’s speculations and weighing of the relative importance of the fetus and the mother represent a departure from the ‘original constitutional proposition’ that ‘courts do not substitute their social and economic beliefs for the judgment of legislative bodies’” (id. at 2277) (citation omitted).
- “The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body” (id. at 2270).
Thus, Justice Thomas’s problems with the reasoning behind the Court’s qualified immunity precedents sound awfully similar to the five-justice majority’s problems with the reasoning in Roe and Casey.
If there ever was a time to reexamine qualified immunity, now would appear to be that time.