Yesterday I wrote about two recent en banc decisions from the Fifth and Eighth Circuits on the subject of qualified immunity, and how those cases fit into the rising tide of opposition to the doctrine generally. But I wanted to expand upon a point of disagreement between two of the dissents in Cole v. Hunter (the Fifth Circuit case), which may prove to be one of the central questions if and when the Supreme Court decides to reconsider the doctrine — namely, the relationship between qualified immunity, Section 1983, and originalism. I’ll note that both Josh Blackman and Damon Root have already written about this aspect of the Cole decision, but as someone who’s spent the better part of the last two years waging a campaign against qualified immunity I wanted to offer my take on the many ways in which Judges James Ho and Andrew Oldham seriously misunderstand qualified immunity, Section 1983, and originalism itself. 


As I noted previously, Judge Don Willett — a Trump appointee and one of the judges on his shortlist for the Supreme Court — has emerged as a prominent critic of qualified immunity, and has now repeatedly urged the Supreme Court to reconsider the doctrine. A few months ago, in Zadeh v. Robinson, he explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Judge Willett again picked up this theme in his separate dissent in Cole, beginning his opinion with the assertion that “[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.” (Note that Judge Willett agreed with the other dissenters that, under current precedent, the defendants in Cole were entitled to immunity, which is why his opinion was also a dissent, even though it takes a very different approach.)


Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman — both Trump appointees themselves — wrote separately to respond to the general idea that qualified immunity should be reconsidered. In particular, they say the following about the “originalist” critique of qualified immunity — i.e., the historical fact that the common law of 1871 (when Section 1983 was first passed) provided absolutely nothing like the sweeping, across-the-board defense for state officials that characterizes qualified immunity today:

[S]ome have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution.… As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.


The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J., joined by Thomas, J., dissenting).


A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability:


“[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted .… [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law.”

In other words, qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously expanded the reach of Section 1983 in Monroe v. Pape (by holding that state officials could be sued even when they were acting contrary to a state’s own laws), then two wrongs make a right, and we should just keep qualified immunity as is, as a kind of compensating error. Indeed, they conclude this section of the opinion by saying: “If we’re not going to do it right, then perhaps we shouldn’t do it at all” — with “it” here meaning, actually interpret statutes as written.


Lest this argument seem like an abstruse, academic rejoinder, I can personally attest, having now participated in or observed several debates on qualified immunity, that this is the most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this “two wrongs make a right” argument is so deeply, fundamentally flawed, on so many levels, that it’s worth spelling out each of them in detail:



First, perhaps a pedantic point, but Judges Ho and Oldman’s august reference to the “Founder’s Constitution” is out of place in this discussion. Qualified immunity is not a constitutional doctrine; it is, nominally, a gloss on the statute currently codified at 42 USC § 1983, but which was originally enacted by the Reconstruction Congress in 1871. And as even the Supreme Court has acknowledged, “the statute on its face does not provide for any immunities.” Malley v. Briggs, 475 U.S. 335, 342 (1986). Thus, the only conceivable legal basis for qualified immunity is the Supreme Court’s false assertion that “[c]ertain immunities were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). I will not go into detail here explaining why this defense of the doctrine fails utterly as a matter of actual historical fact, but Will Baude has addressed the question extensively, and I summarize the issue here. Suffice to say, the debate here isn’t over “originalism” as an overarching theory of constitutional interpretation, and isn’t really about the Constitution at all — we’re talking about how to correctly interpret and apply a particular statute.



Second, Judges Ho and Oldman (and Justice Scalia, in his Crawford-El opinion) seem to take it as a given that Monroe v. Pape was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter-balancing) errors with qualified immunity itself. But that assumption simply isn’t justified — indeed, there’s a very good originalist argument that Monroe was, in fact, correctly decided, which of course would entirely negate this “two wrongs make a right” defense of qualified immunity. To restate Justice Scalia’s (and by extension, Judges Ho and Oldman’s) criticism of Monroe: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia’s view, a state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were not authorized by state law, the Monroe Court massively expanded liability under Section 1983, in contravention of the statutory language.


Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase “under color of.” After all, the statute could have been written to cover violations committed “in accordance with any statute, ordinance, regulation, custom, or usage, of any State.” If that were what the statute said, Justice Scalia’s criticism of Monroe would be well taken. But, as a historical, originalist matter, that is simply not what the phrase “under color of” means. To the contrary, this phrase is actually a longstanding term-of-art which was well understood to encompass false claims to authority. As detailed by Steven Winter in an article on exactly this subject, the use of this phrase goes back more than 500 years, to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority — which is exactly the sort of unlawful conduct recognized by Monroe. Therefore, contra Justice Scalia’s suggestion in Crawford-El, a faithfully originalist understanding of Section 1983 would seem to support the result in Monroe. And if that’s the case, then obviously the whole “two wrongs make a right” theory collapses.



Third, let’s assume — as I do not think is the case — that Monroe v. Pape was incorrectly decided. If we are unwilling to revisit that decision on “originalist” grounds, is that a sufficient reason to refuse to reconsider qualified immunity as well? Absolutely not. For one, even if Monroe were wrong, it meets absolutely all the traditional criteria for respect as precedent — even if incorrect, the question is at the very least a close call, in light of the textual/​historical argument I noted above; it has produced a clear, unambiguous rule, which lower courts routinely apply without any confusion or disagreement; and it has been thoroughly accepted by both the judiciary and the general public as legitimate and appropriate.


In sharp contrast, modern qualified immunity doctrine is at the opposite end of the spectrum on all of these criteria. No one — absolutely no one — will look you in the eye with a straight face and tell you that contemporary qualified immunity doctrine represents the best interpretation of the text and history Section 1983. As evidenced by Justice Scalia’s Crawford-El opinion and Judges Ho and Oldham’s dissent in Cole, the judicial defenders of qualified immunity aren’t even trying to make this argument. Indeed, the most robust defense of the doctrine that I’m aware of is the recent piece by Aaron Nielson and Chris Walker, appropriately titled “A Qualified Defense of Qualified Immunity” — and even there, the most they argue is that the historical evidence isn’t quite as one-sided as Will Baude suggests, and that while some form of qualified immunity might be justified, the Court’s current doctrine is still in need of correction.


Moreover, in contrast to the clear rule from Monroe, the Court’s “clearly established law” standard has proven hopelessly amorphous, malleable, and incapable of consistent, predictable application in lower courts. And as evidenced by the diverse and growing chorus of judges, academics, and public-policy voices calling for the Supreme Court to revise or abolish the doctrine, it has hardly been accepted as legitimate. Far from being a mere technical error, this noxious doctrine regularly denies relief to victims of egregious state misconduct, undermines accountability for government agents at a structural level, and exacerbates the national crisis of confidence in law enforcement generally. Thus, even if both Monroe and qualified immunity merit originalist criticism, there is a far, far stronger case for reexamining the latter than the former.



Fourth, setting aside the object-level questions of whether Monroe was correct, how bad it is compared to qualified immunity, etc., we should reject the “two wrongs make a right” approach to judicial decision-making at a fundamental level. Yes, the Supreme Court sometimes reaches the wrong answer. Yes, sometimes those wrong answers will distort other areas of law. But in a world where we’re going to predictably disagree on which cases are correct or not, “you got this case wrong so I’m allowed to get this other case wrong” is a license for endless, unresolvable turmoil. If qualified immunity has gone “too far” in correcting for the supposed mistake in Monroe, are judges allowed to distort the meaning of other statutes to fix this problem? What compensating errors will be necessary to address the distortion to those statutes? If we all agree the Supreme Court has made some mistakes, then “two wrongs make a right” becomes a fully general argument for defending flawed legal conclusions, so long as they can plausibly be tied to a past alleged mistake. That way lies madness, not the rule of law.


More generally, Judges Ho and Oldham suggest that, if we’re going to reconsider qualified immunity on originalist grounds, we’re somehow honor-bound to reconsider Monroe as well. But that’s just not how doctrine is developed in our adversarial system. The Supreme Court doesn’t act as a regulatory body, issuing advisory opinions on several related subjects simultaneously so as to ensure general harmony in the case law; rather, it resolves disputes in the individual cases it decides to take. Textualism and originalism, at their best, aim to provide a principled, predictable, value-neutral means of deciding cases. Of course, some questions will still be hard even under this approach, and how originalists should deal with non-originalist precedent is a famously thorny problem. But the best that judges can do is try to get the right answer in each case that comes before them — and the “two wrongs make a right” theory renders this principled approach impossible.


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In my view, the opponents of qualified immunity have made a persuasive argument that the doctrine is utterly without legal or historical justification, that it is impossible to apply with the consistency or predictability that generally warrant respect for precedent in the first place, and that is actively corrupting what would otherwise be the best means we have of ensuring accountability for government agents. That argument deserves to be met on its own terms. If the defenders of qualified immunity think Monroe is wrong too, then fine. Let them make that argument. Let them engage in the detailed textual and historical analysis that would actually be necessary to justify it. Let them convince the judiciary and the public at large that this error is so egregious and harmful that it warrants reconsideration. I’m quite skeptical these folks actually want to make such an argument, but if they do, it deserves to be met on its own terms as well. But it is cowardly, unprincipled, and decidedly anti-originalist to refuse to meet the challenge to qualified immunity face-to-face, just because there’s some other alleged mistake to hide behind.