Qualified immunity is a judicial doctrine invented by the Supreme Court that shields public officials from liability, even when they violate people’s constitutional rights, unless a court determines those rights were “clearly established.” Yesterday, USA Today ran an op-ed by Anya Bidwell and Patrick Jaicomo, two attorneys with the Institute for Justice, arguing that the “Supreme Court is rethinking qualified immunity.” They base this conclusion on the outcomes in three recent Supreme Court cases — Taylor v. Riojas, McCoy v. Alamu, and Tanzin v. Tanvir — gleaning from them that “the Supreme Court is stepping up to deliver by reintroducing some common sense to the law.”

I know and admire Anya and Patrick, and I have great respect for their work challenging qualified immunity, and their advocacy for liberty generally. But their op-ed is profoundly mistaken in its suggestion that the Court is preparing to reconsider qualified immunity. The orders in Taylor and McCoy vacated especially egregious grants of immunity, which does suggest the Justices want to curb the worst excesses of the doctrine. But they also suggest the Supreme Court is not going to take up the larger question of whether qualified immunity itself should be reconsidered. And to suggest otherwise is not just wrong, but counter-productive — raising the false hope that the Court may rescue us from qualified immunity risks distracting Congress from the urgent goal of eliminating the doctrine through legislation.

To fully grasp why the Supreme Court is almost certainly not preparing to reconsider qualified immunity, a bit of background is necessary.

The key feature of modern qualified immunity doctrine — the “clearly established law” standard — was created by the Supreme Court in 1982, in Harlow v. Fitzgerald. Our primary federal civil rights law, Section 1983, plainly provides that any state actor who causes the “deprivation of any rights, privileges, or immunities secured by the Constitution … shall be liable to the party injured.” But the Harlow decision effectively rewrote this statute, inserting the words “clearly established” between “any” and “rights.” In doing so, the Court did not even pretend to be faithfully interpreting the statute; rather, it justified this decision based solely on its own evaluation of good public policy.

The call for the Supreme Court to reconsider qualified immunity began in earnest in 2017, for two related reasons. First, Professor Will Baude published his game-changing article Is Qualified Immunity Unlawful?, explaining in detail how qualified immunity is not only inconsistent with the text of Section 1983, but also unsupported by common-law history. Second, Justice Thomas wrote a concurring opinion in Ziglar v. Abbasi, explaining the legal shortcomings with qualified immunity (relying on Will Baude’s article) and explicitly calling for the Court to reconsider the doctrine.

When the Cato Institute launched its campaign to eliminate qualified immunity in March 2018, our initial strategic priority was to convince the Supreme Court to take a case raising exactly this question. We did so in large part by assembling a vast, cross-ideological coalition of public policy groups opposed to qualified immunity — including, for example, the ACLU, the NAACP, the Alliance Defending Freedom, and the Second Amendment Foundation — and filing amicus briefs on behalf of this coalition, in support of cert petitions that asked the Court to reconsider qualified immunity.

Those efforts came to a head in 2020. As I discussed in many, many, many, many, many, many blog posts that spring, the Justices were repeatedly rescheduling (but grouping together for consideration) cert petitions in three major qualified-immunity cases — Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers. All three raised the fundamental question of whether qualified immunity should be reconsidered, and they were supported by the Cato-led cross-ideological amicus brief. But on June 15th, the Court unexpectedly denied cert in all of these cases, with only Justice Thomas dissenting. At the time, I called these denials a “dereliction of duty,” and I stand by that criticism — especially because the Court’s failure to take action on this issue came in the midst of a national crisis over the lack of police accountability.

That brings us to Taylor v. Riojas, the first of three decisions that Anya and Patrick cite as a “signal that [the Court is] rethinking the doctrine of qualified immunity.” In this case, the Fifth Circuit had granted immunity to prison officials who subjected an inmate to inhumane conditions — keeping him for several days in a cell covered floor to ceiling with the feces of the previous occupant, and then moving him to another cell kept at freezing temperatures, where a clogged drain on the floor caused raw sewage to flood the cell. This was the last case, chronologically, to raise the question of whether qualified immunity itself should be reconsidered, and it was also supported by the Cato-led cross-ideological brief. But because of when the petition was filed, it wasn’t up for consideration by the Supreme Court until October 2020.

Given that the Court had denied cert in all of the other major qualified-immunity cases, we weren’t optimistic that the Court would grant cert in Taylor either. And indeed, the Court did not agree to hear the case on the merits. Instead, the Court issued what’s called a “GVR” (grant, vacate, and remand), meaning that the Fifth Circuit’s decision was vacated, and the lower court was instructed to reconsider the case.

Anya and Patrick correctly note that the Court also issued a short per curiam opinion, holding that “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” As I discussed here, this opinion was a significant development. It was the first time in sixteen years, and only the third time ever, that the Court expressly found official misconduct to violate “clearly established law.” The decision also restored some vitality to the principle announced in Hope v. Pelzer, that when a constitutional violation is sufficiently obvious, qualified immunity can be denied without a prior case exactly on point. As compared to the alternative of doing nothing, I’m glad the Supreme Court at least made some effort to curb the worst excesses of the doctrine.

But, as should hopefully be clear by now, the Court GVR’ed this case instead of reconsidering qualified immunity. The Court had the perfect opportunity to reconsider qualified immunity in June 2020, but turned it down. The Court had another opportunity to reconsider qualified immunity in October, but again turned it down. The Taylor opinion clearly reads to me as the Court’s recognition that the situation has gotten out of hand, and that the Justices would like lower courts to slightly dial back the harshest applications of the “clearly established law” standard. But it is just as clearly an indication that the Court is not going to take up the fundamental question of whether the doctrine itself should be reconsidered.

The subsequent order in McCoy v. Alamu — another of the cases the op-ed cites — simply underscores this point. This was a case where the Fifth Circuit granted immunity to a prison official who was alleged to have gratuitously assaulted an inmate with pepper spray. As in Taylor, the lower court granted qualified immunity simply because there was no case with exactly similar facts. And as in Taylor, the Supreme Court declined to hear the case on the merits. But it did GVR the case for “further consideration in light of Taylor v. Riojas” (although this time with no opinion).

In other words, McCoy suggests the Justices are serious about reining in the worst excesses of qualified immunity — lower courts should not continue to grant immunity in especially egregious cases, just because there’s no prior case with identical facts. But it also suggests that this “clarification” of the doctrine, rather than an outright reconsideration of the doctrine, is as far as the Court will go on this issue. The very fact that the Court thought a GVR “in light of Taylor v. Riojas” was sufficient to address McCoy is itself a sign that the Court sees Taylor as a sufficient clarification of the doctrine. As Clark Neily and I discussed in this episode of the Cato Daily Podcast, that clarification is better than nothing, but it’s a band-aid on a gaping wound.

Finally, Anya and Patrick cite the Court’s recent decision in Tanzin v. Tanvir — but this wasn’t even a qualified immunity case. The issue in Tanzin was simply how to interpret the remedy provisions of the Religious Freedom Restoration Act. The Court held, unanimously, that the statute does allow for money damages, but the reasoning was based purely on statutory interpretation. The op-ed tries to skirt around this issue, acknowledging that the case didn’t actually involve qualified immunity, but asserting that “the government’s briefing heavily relied on the same arguments it deploys in qualified immunity cases.” But I don’t see how that’s any evidence the Justices are actually preparing to reconsider qualified immunity itself. The fact that they’re trying to avoid rewriting other civil rights laws says nothing about whether they’re willing to reconsider past mistakes.

In sum, the outcomes in these three cases are certainly net-positive developments for those concerned with official accountability. But they are not, as the op-ed argues, a sign that the Court “may now be entering a new dawn on qualified immunity.” To the contrary, two of the cases suggest exactly the opposite — that the Supreme Court has decided to forgo reconsideration of the doctrine in favor of small doctrinal clarifications.

At this point, the only realistic prospect of actual qualified immunity reform is from legislatures, not the Supreme Court. And indeed, that’s exactly why I find the mistaken conclusion in this op-ed so troubling. There are already two proposals before the 117th Congress that would address qualified immunity, and state legislatures around the country are considering state-level civil rights laws that would explicitly preclude qualified immunity as a defense. These legislators should have no doubts whatsoever that they, not the courts, are now fully responsible for ensuring that citizens have the power to vindicate their constitutional rights.

I wanted the Supreme Court to reconsider qualified immunity as much as anybody. I argued again and again — in amicus briefs, blog posts, and public debates — that even though Congress could solve the problem, the Supreme Court was still obligated to fix what it broke. But it looks like the Justices disagreed. Qualified immunity will go down in history as one of the Court’s most egregious and harmful mistakes, but the Court isn’t going to save us from it. And we should be under no illusions to the contrary.