The National Review Cites William Baude on the Justifications of the Qualified Immunity Doctrine, and Their Weaknesses

End Qualified Immunity

As Ford notes in his New Republic essay, the judicial times may be changing. Justices Clarence Thomas and Sonia Sotomayor have both signaled their displeasure with the doctrine, and in 2017 respected University of Chicago law professor William Baude wrote a comprehensive critique. While I’d encourage the curious to read the entire paper, this conclusion — from the abstract — is on point:

Members of the Supreme Court have offered three different justifications for imposing this unwritten defense on the text of Section 1983. First, that the doctrine of qualified immunity derives from a common-law “good-faith” defense. Second, that it compensates for an earlier putative mistake in broadening the statute. Third, that it provides “fair warning” to government officials, akin to the rule of lenity.

On closer examination, each of these justifications falls apart for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. . . . Despite its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat.

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