Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.
I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:
“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”
In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.
Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.