The doctrine is also under siege from originalists, who argue that the court’s purported historical basis for qualified immunity appears to be groundless. In a 2017 article, University of Chicago law professor William Baude noted that the court typically advances three justifications for the doctrine. “One is that it derives from a common law ‘good faith’ defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides ‘fair warning’ to government officials, akin to the rule of lenity,” he wrote. But Baude found those arguments wanting: “There was no such defense, there was no such mistake, and lenity ought not to apply.”

In the 2017 case Ziglar v. Abbasi, Justice Clarence Thomas wrote a concurring opinion that cited Baude’s work and echoed his concerns. “Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in ‘interpret[ing] the intent of Congress in enacting’ the Act,” he wrote, paraphrasing other cases. “Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” He suggested that the court should revisit the issue “in an appropriate case.”

Read more at The New Republic