More on Pearson v. Callahan

I posted on Monday about the Supreme Court’s grant of cert in Pearson v. Callahan and its request for briefing on the question of whether to overturn Saucier v. Katz. For those of you who don’t follow qualified immunity law closely (are you really out there???) Saucier required federal courts consider Section 1983 and Bivens actions to consider the merits of the plaintiff’s claim before turning to the proffered defense of qualified immunity. Saucier has been unpopular with both lower federal courts and many of the Justices of the Supreme Court (*shameless plug* for a defense of Saucier, see my forthcoming article. *end plug*)

What’s curious about this case to me is that, although the Supreme Court has asked the parties to brief the question of whether Saucier should be overturned, I can’t imagine why either the petitioner or the respondent would care about that question. Saucier’s ordinal mandate perhaps helps plaintiffs in the long run because it requires federal courts to establish federal law rather than simply saying that the federal issue is a close one and that therefore the defendant wins on qualified immunity. Saucier is also probably defendant unfriendly in the long run because it keeps them in civil rights cases longer and likely makes it easier for plaintiffs to recover against them. (Of course, it’s also possible that law-abiding public officials want to know what that law is so that they can conform their conduct to it, but that’s a conversation for another day.)

In the context of an ongoing case, however, the parties before the Court don’t really care whether Saucier is overturned or not. Saucier is a procedural requirement imposed on the lower federal courts not the enunciation of either a right or a remedy; however the Court resolves the Saucier question, its resolution of that question will not affect these parties in the least. Perhaps the benefit to the Court of asking for briefing on this issue is the hope that it will induce the repeat players — the ACLU, police unions, etc. — who do have an interest in the outcome of the Saucier question to submit amicus briefs on the subject.

Still, I find it interesting that the usual standing considerations seem inverted here; it is only those without a stake in this litigation — amicus curiae — who have an interest in the real question the Court seems concerned with.

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