Guest blogger and a visiting scholar at Georgetown University Law Center Nancy Leong discusses Wednesday’s decision in Pearson v. Callahan. Additional information is available on SCOTUSwiki, here.

In its decision in Pearson v. Callahan, the Supreme Court listed a familiar set of justifications for overruling Saucier v. Katz's two-step approach to deciding qualified immunity defenses.  As summarized here, these justifications "“ raised repeatedly by courts and commentators "“ include the waste of resources by both the judicial system and parties; the risk of poor decisionmaking resulting from insufficient discovery and briefing when courts are forced to decide cases at the pleading stage; and the contravention of norms of constitutional avoidance.

 These familiar justifications carry considerable weight.  But Justice Alito's opinion acknowledges, yet falls short of fully developing, another important consideration: the role of judges’ cognitive processes in implementing an artificial, judicially-created procedural rule such as that mandated by Saucier.

The unanimous opinion candidly acknowledges the human psychology underlying judicial decisionmaking:  “Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not "“ and obviously cannot "“ specify the sequence in which judges reach their conclusions in their own internal thought processes.”  Thus, in cases where the qualified immunity question is easy and the constitutional question is difficult, “there is a risk that a court may not devote as much care as it would in other circumstances to the decision of the constitutional issue.”

But the Court’s analysis ends there, short of acknowledging the cognitive difficulty that judges may face in attempting to keep the two parts of the qualified immunity inquiry segregated from one another in their minds.  Thus, although the Court acknowledges that a judge confronted with an easy qualified immunity question may decide the constitutional question with less "care," it fails to consider that an easy immunity determination may "“ on a subconscious level "“ influence a judge's thinking about the outcome of a more challenging constitutional issue.

In an article forthcoming in the Pepperdine Law Review (available on SSRN here), I present a quantitative analysis of six hundred federal cases randomly selected from discrete time periods before and after the implementation of the Saucier sequencing.  Before the Court mandated the sequencing approach, appellate courts avoided the constitutional question in 48% of cases in which the defendant ultimately prevailed on qualified immunity grounds. After Saucier, that percentage dropped to 6%.  Saucier, then, was certainly effective at facilitating the increased articulation of constitutional standards.

Intriguingly, however, as courts decided more constitutional issues, the additional constitutional law they articulated universally favored defendants.  The percentage of constitutional rulings favoring defendants increased from 46% to 85%, while there was no statistically significant increase in the percentage of rulings for plaintiffs.

One interpretation of this data might be that judges tend to rule for defendants in order to avoid the cognitive dissonance that would ensue from holding that a plaintiff’s rights were violated, yet then granting immunity to the defendant who violated those rights. Such a decision conflicts with the general jurisprudential principle that where there is a right, there is a remedy "“ a conflict intensified by the fact that the decision involves a constitutional right and a judge-made remedy.  Such a ruling is also uncomfortably close to an admission by the judge that he or she is enunciating constitutional law that no reasonable officer could have anticipated, thereby underscoring the lack of precedent for the judge’s constitutional ruling.

Regardless of the explanation, the data suggest that a reduction in constitutional law articulation will tend to benefit plaintiffs.  All other things remaining equal, a return to the pre-Saucier world would prompt a decrease in the amount of constitutional law articulated, but an increase in the percentage of articulated law that favors plaintiffs.

But ultimately, such a prediction is little more than speculation, given that the Court's opinion in Pearson provided no instruction as to how the lower courts should exercise their discretion in determining whether to decide a constitutional issue.  Should lower courts reach the constitutional issue only when the issue is easily decided?  But if the issue is easily decided in favor of the plaintiff, wouldn't that be grounds for denial of qualified immunity, since in that case a reasonable officer would have known that he was committing a violation?  Or should courts reach the constitutional issue only when the briefing before the court is thoroughly developed?  But wouldn't such a rule privilege the decision of issues raised by parties who have the resources to hire skilled counsel?

Only time will reveal how courts answer these questions.  For now, it is clear only that what Justice Breyer once described as the "Saucier experiment" (see Morse v. Frederick) is far from over.

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