The Supreme Court building in Washington. (J. Scott Applewhite/Associated Press)

Today was a busy and newsworthy day in constitutional law at the Supreme Court, and one reason was the court’s constitutional remedies decision in Ziglar v. Abbasi. In Ziglar, a short-handed, six-justice court blocked a set of constitutional claims brought against government officials arising out of harsh detentions in the wake of 9/11. The court’s ruling implicated several different procedural doctrines and may prove to be the ultimate cap on almost all “Bivens” suits for damages against federal officials (as Steve Vladeck discusses in this thread).

But along the way, the decision provoked some promising skepticism from Justice Clarence Thomas about the doctrine of qualified immunity (a doctrine that protects government officials from liability for unconstitutional conduct and which I’ve previously posted about here and here).

Here is Thomas, writing separately:

As for respondents’ claims under 42 U.S.C. § 1985(3), I join Part V of the Court’s opinion, which holds that respondents are entitled to qualified immunity. The Court correctly applies our precedents, which no party has asked us to reconsider. I write separately, however, to note my growing concern with our qualified immunity jurisprudence.

The Civil Rights Act of 1871, of which § 1985(3) and the more frequently litigated § 1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. See §§ 1, 2, . 13. Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U.S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) ; accord, Briscoe v. LaHue, 460 U.S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U.S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U.S. 914, 920 (1984).

In some contexts, we have conducted the common-law inquiry that the statute requires. See Wyatt v. Cole, 504 U. S. 158, 170 (1992) (Kennedy, J., concurring). For example, we have concluded that legislators and judges are absolutely immune from liability under §1983 for their official acts because that immunity was well established at common law in 1871. See Tenney v. Brandhove, 341 U.S. 367–376 (1951) (legislators); Pierson v. Ray, 386 U.S. 547–555 (1967) (judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the “judicial phase of the criminal process,” Imbler, supra, at 430; Burns v. Reed, 500 U.S. 478–492 (1991); but see Kalina v. Fletcher, 522 U. S. 118–134 (1997) (Scalia, J., joined by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor’s advice to police officers, Burns, supra, at 493.

In developing immunity doctrine for other executive officers, we also started off by applying common-law rules. In Pierson, we held that police officers are not absolutely immune from a § 1983 claim arising from an arrest made pursuant to an unconstitutional statute because the common law never granted arresting officers that sort of immunity. 386 U.S., at 555. Rather, we concluded that police officers could assert “the defense of good faith and probable cause” against the claim for an unconstitutional arrest because that defense was available against the analogous torts of “false arrest and imprisonment” at common law. Id., at 557.

In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170 (Kennedy, J., concurring); accord, Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J.,joined by Thomas, J., dissenting). In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U.S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U.S. ___, ___–___ (2015) ( per curiam) (slip op., at 4–5) (internal quotation marks omitted); Taylor v. Barkes, 575 U.S. ___, ___ (2015) (slip op., at 4) (a Government official is liable under the 1871 Act only if “ ‘existing precedent . . . placed the statutory or constitutional question beyond debate’ ” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))). We apply this “clearly established” standard “across the board” and without regard to “the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.” Anderson, supra, at 641–643 (internal quotation marks omitted). We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).

Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Malley, supra, at 342; see Burns, supra, at 493. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U.S. 356, 363 (2012) (internal quotation marks omitted); see also Tower, supra, at 922–923 (“We do not have a license to establish immunities from” suits brought under the Act “in the interests of what we judge to be sound public policy”). We have acknowledged, in fact, that the “clearly established” standard is designed to “protec[t] the balance between vindication of constitutional rights and government officials’ effective performance of their duties.” Reichle v. Howards, 566 U. S. 658, 664 (2012) (internal quotation marks omitted); Harlow, supra, at 807 (explaining that “the recognition of a qualified immunity defense . . . reflected an attempt to balance competing values”). The Constitution assigns this kind of balancing to Congress, not the Courts.

In today’s decision, we continue down the path our precedents have marked. We ask “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted,” ante, at 29 (internal quotation marks omitted), rather than whether officers in petitioners’ positions would have been accorded immunity at common law in 1871 from claims analogous to respondents’. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere fortuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Now, of course, Thomas is writing only for himself, but I am glad to see somebody on the court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably “no,” but even if the court disagrees and ultimately concludes that the answer is “yes,” I think it would be good for the justices to give some attention to the issue and explain why exactly they think it is justified. (As I discuss in the paper, different members of the court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

In an interesting coincidence, just last week I came across this certiorari petition in the case of Surratt v. McClaran, which asks the court, among other things, to discontinue or modify the doctrine of qualified immunity. I haven’t finished digging into the Surratt case itself — it appears that police officers choked a woman to death in the back of a squad car while trying to get a baggie of drugs out of her mouth, but the U.S. Court for the 5th Circuit found immunity anyway, noting that “previous law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual’s throat where the individual appears to be concealing something in their mouth.”

Perhaps the “appropriate case” will be before Thomas and the rest of the court in just a few months.