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: Begging the Question

Lolkatz

By "Milbarge" and "Fitz-Hume"

Big news from the Supreme Court today on the issue of qualified immunity, in a case called Pearson v. Callahan. Here's a summary from Prof. Kerr at Volokh, and more from Prof. Althouse and Steve Minor. The Court, in a much-anticipated move, overruled the 2001 case Saucier v. Katz, and held that Saucier's two-step mode of analysis was no longer mandatory, but instead would now be discretionary.

Long-time readers know that I opposed overruling Saucier, and I won't re-hash my argument again in this post. I'll just link to previous writings here, here, here, and (especially) here. Steve Minor's post also links to several of his prior posts on the doctrine.

Briefly, I'm not as optimistic as the (unanimous) Court that future courts will continue to decide the constitutional questions. And I think that presents the dangers of stagnating the development (and not necessarily expansion, I also mean clarification) of the law and failing to provide guidance to lower courts and litigants. It will simply prove too easy, I fear, to skip right to step two, since it will usually be the easier question to answer. I understand the principle of constitutional avoidance, but (a) it's a prudential doctrine, not an Article III mandate, and (b) Pearson will tempt lower courts to rely on the avoidance doctrine to skip straight to the "clearly established" prong of Saucier.

One final thought: I wonder if I'm alone in seeing a parallel between Pearson and the Booker line of cases. A mandatory but constitutionally-suspect guideline is made discretionary but still somewhat advisory? It's a bit of a stretch, I admit. But I suspect that the lower courts will be much more eager to exercise their discretion in qualified immunity cases than they have proven to be so far in sentencing cases.

Full post as published by Begging the Question on January 21, 2009 (boomark / email).