Qualified Immunity: Round Two

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now.

Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might judicial capacity concerns prompt judges to take countermeasures that discourage constitutional tort suits, effectively reproducing qualified immunity by another name? Can anything be done to prevent this outcome? This Article takes up these questions, which will remain relevant as long as qualified immunity persists and become urgent if and when the doctrine is seriously reformed or abolished.

The first step is to disaggregate the federal judiciary into its component parts. A substantial influx of new constitutional tort litigation poses little threat to the capacity of the Supreme Court because the Justices would not feel compelled to review more than a tiny fraction of these cases. Lower courts, however, must decide every case presented to them and many of them are already staggering under overwhelming workloads. Several of the tools available for managing a sudden surge of cases would raise substantial obstacles to the success of constitutional tort plaintiffs, replicating many, if not all, of the effects of qualified immunity.

This outcome is not inevitable, however. Avoiding it will be “Round Two” in the battle over qualified immunity. The most powerful weapons in that fight, as in Round One, will be political and social, rather than legal.