Document Type

Article

Publication Date

Fall 10-13-2021

Subject Category

Law | Supreme Court of the United States

Abstract

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and optimistic impressions of these cases’ importance from the perspective of a qualified-immunity critic. The Essay argues that the optimistic view probably gets things right in that the Court is taking tentative steps forward by precluding some of the doctrine’s most extreme consequences. The Essay then contends that this modest move nevertheless demonstrates why those concerned about qualified immunity should focus not only on the courts, but also on the other branches of government—and not only on one doctrine, but also on constitutional-tort law as a whole. In and beyond the recent reform-minded moment, we should think big about how to improve constitutional enforcement: bigger than the judiciary and bigger than qualified immunity.

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