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Justice Thomas' Doubts on Qualified Immunity and Regulatory Takings
Michael Ramsey

Concurring in this week's qualified immunity case Ziglar v. Abbasi, Justice Thomas (citing Will Baude) raised a fundamental question about the originalist basis of the doctrine (some quotations and citation omitted):

I write separately …  to note my growing concern with our qualified immunity jurisprudence. The Civil Rights Act of 1871, of which §1985(3) and the more frequently litigated §1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law.  Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U. S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . 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); accord, Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U. S. 914, 920 (1984). …

In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute.  In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U. S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under §1983, we instead grant immunity to any officer whose conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. … We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).

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. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted).  

… Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Will Baude has more at Volokh Conspiracy, commenting: 

Now, of course, Thomas is writing only for himself, but I am glad to see somebody on the court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably “no,” but even if the court disagrees and ultimately concludes that the answer is “yes,” I think it would be good for the justices to give some attention to the issue and explain why exactly they think it is justified. (As I discuss in the paper, different members of the court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

RELATED:  Justice Thomas also expressed doubts about the originalist foundations of regulutory takings dcotrine (citing my colleague and co-blogger Mike Rappaport) in this week's decision in Murr v. Wisconsin.   From Jonathan Adler at Volokh Conspiracy: Should regulatory takings doctrine be reconsidered from the ground up?  From Justice Thomas' opinion: 

In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions). [ed.: article available here].

SOMEWHAT RELATED:  Also at Volokh Conspiracy from Jonathan Adler:  Justice Gorsuch’s first opinions reveal a confident textualist.  From the introduction:

Associate Justice Neil Gorsuch has now written three opinions — a majority, a partial concurrence and a dissent. All three show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues. [discussing two opinions from this week plus this earlier one].

It's early to be counting, but Justice Thomas joined all three of these opinions.