Do you like your Constitution raw or well done? The recent Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007),* contains a concurrence by Justice Breyer questioning the Saucier framework in civil rights cases for deciding qualified immunity by requiring that courts find a constitutional violation before proceeding to an immunity analysis. As argued by Justice Breyer, this leads courts to issuing more and unnecessary opinions on constitutional questions.
Saucier itself is a two pronged analysis: was a constitutional right violated, and, if so, were the contours of the right sufficiently clear that a reasonable person would know their conduct violated clearly established law? If reasonable minds could differ, then qualified immunity applies. (Other cases describe qualified immunity as protecting all but the “plainly incompetent,” or “those who knowingly violate the law”).
In Scott, Justice Breyer complained that Saucier forces district courts to issue unnecessary constitutional decisions before disposing of cases on immunity grounds: “the order-of-battle rule violates that older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Scott, 127 S.Ct. at 1780 (citations omitted).
Bolstering his critique, Justice Breyer points out that Saucier’s “order-of-battle,” “may immunize an incorrect constitutional ruling from review,” id, where a case is disposed on the second prong. Justice Breyer further argues that “order-of-battle” “will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity.” Id.
And Justice Breyer is not alone. Joined by 28 States which filed amici briefs, and, most likely by Justices Ginsberg and Stevens, (if you accept the concurrence in Saucier as evidence), there is some momentum for change.
Of course, this momentum does not swing one way only. Saucier itself grounded the wisdom of resolving constitutional questions in principle building, or the establishment of legal guide posts for subsequent courts:
“In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
The contrast between Saucier and Justice Breyer could not be more clear, which gets back to the initial question: how do you like your Constitution, raw or well done?
Saucier itself is a two pronged analysis: was a constitutional right violated, and, if so, were the contours of the right sufficiently clear that a reasonable person would know their conduct violated clearly established law? If reasonable minds could differ, then qualified immunity applies. (Other cases describe qualified immunity as protecting all but the “plainly incompetent,” or “those who knowingly violate the law”).
In Scott, Justice Breyer complained that Saucier forces district courts to issue unnecessary constitutional decisions before disposing of cases on immunity grounds: “the order-of-battle rule violates that older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Scott, 127 S.Ct. at 1780 (citations omitted).
Bolstering his critique, Justice Breyer points out that Saucier’s “order-of-battle,” “may immunize an incorrect constitutional ruling from review,” id, where a case is disposed on the second prong. Justice Breyer further argues that “order-of-battle” “will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity.” Id.
And Justice Breyer is not alone. Joined by 28 States which filed amici briefs, and, most likely by Justices Ginsberg and Stevens, (if you accept the concurrence in Saucier as evidence), there is some momentum for change.
Of course, this momentum does not swing one way only. Saucier itself grounded the wisdom of resolving constitutional questions in principle building, or the establishment of legal guide posts for subsequent courts:
“In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
The contrast between Saucier and Justice Breyer could not be more clear, which gets back to the initial question: how do you like your Constitution, raw or well done?
*(The Scott decision is noteworthy as the first opinion in which the Court embeded a web link, which in this case directs the user to a video of the car chase at issue. The video can be found here).
1 comment:
Justice Breyer's criticism of Saucier has been a consistent refrain. He criticized it in Brosseau v. Haugen, 543 U. S. 194, 201-202 (2004). And, in the new student-speech case (Morse v. Fredrick), he voiced his concern at length, calling it "the failed Saucier experiment." In Morse, he cited cases where other justices have criticized the Saucier order, including Ginsburg, Scalia, Stevens, and Kennedy. Footnote 4 of the majority opinion in Scott certainly did not provide a ringing endorsement of Saucier.
If the Court ever confronts the issue directly, it seems reasonable to conclude it would strike the rigid order of analysis, and make it a discretionary thing. That way, courts could enjoy a bit of raw-constitutional-decision-making, if so desired. Otherwise, it's well-done.
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