Strategic Immunity

• Publication year: 2016

Strategic Immunity

Aaron L. Nielson

Christopher J. Walker

STRATEGIC IMMUNITY

Aaron L. Nielson^* Christopher J. Walker^**

ABSTRACT

The first rule of administrative law is that discretion can be dangerous. Although discretion is often used for its intended purposes, scholars of the regulatory process understand from both theory and experience that unintended consequences sometimes result. This is one reason why the Supreme Court is cautious when it comes to agency discretion. After decades of preventing agencies from acting in arbitrary or even self-interested ways, the modern Court has developed a fairly sophisticated understanding of the risks and rewards of discretion and why it is essential to pay attention to incentives.

That is, unless the Supreme Court is addressing judicial discretion. Then, its sophistication all too often gets tossed aside. Qualified immunity is a perfect example. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the public's benefit. The intent behind this new discretion is sound: flexibility allows judges to balance constitutional avoidance versus constitutional stagnation in light of case-specific factors. What the Court forgot, however, is that discretion can also have unintended consequences.

This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that

federal agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations that can influence a judge's discretionary decision to clearly establish constitutional rights. The potential for strategic behavior is especially sharp, moreover, when discretion to decide constitutional questions is combined with discretion to issue unpublished, nonprecedential opinions. To illustrate this danger, this Article examines real-world judicial decisionmaking. Reviewing over 800 published and unpublished circuit decisions, this Article identifies significant "panel effects": politically unified panels are more likely to exercise discretion either to find no constitutional violation, for "all Republican" panels, or to recognize new constitutional rights, for "all Democratic " panels. The decision to publish also may be used strategically. For instance, one in five decisions recognizing new constitutional rights is unpublished. This potential for strategic behavior—as in the administrative law context—counsels in favor of reform.

INTRODUCTION.......................................................................................57

I. THE NEW QUALIFIED IMMUNITY.................................................65

A. The Substance of Qualified Immunity................................. 65
B. The Procedure of Qualified Immunity................................ 68
C. Unpublished Qualified Immunity Decisions....................... 72

II. ADMINISTRATIVE LAW AND THE DANGER OF DISCRETION.........76

A. The Value and Danger of Administrative Discretion.......... 77
B. Administrative Law's Meta Cost-Benefit Approach ........... 79
C. The Supreme Court's Concerns About Agency Discretion . 81

III. STRATEGIC IMMUNITY: A THEORETICAL EXAMINATION............82

A. An Example: How Does a Judge Vote?.............................. 83
B. Considerations That May Affect How Circuit Court Judges Resolve Qualified Immunity Cases ..................................... 88
C. Theoretical Risks of Judicial Discretion............................. 91

1. Strategic (Non)Use of Pearson Discretion.................... 91
2. Strategic (Non)Publication of Immunity Decisions...... 92

IV. STRATEGIC IMMUNITY: AN EMPIRICAL EXAMINATION...............95

A. Study Methodology ............................................................. 95
B. The New Qualified Immunity Findings ............................. 96
C. Strategic Immunity Findings ............................................ 100

1. Panel Effects and Strategic (Non)Use of Discretion .. 101
2. Strategic (Non)Publication of Immunity Decisions .... 110

V. COUNTERACTING STRATEGIC BEHAVIOR..................................117

A. Courts Should Be Required to Give Reasons ................... 119

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B. For Certiorari Review, Panel Composition Should Matter More, Publication Status Less .......................................... 119
C. The Supreme Court Should Police Discretion Informally 121

CONCLUSION.........................................................................................122

INTRODUCTION

The "perennial question" in administrative law, now-Justice Elena Kagan reminds us, is "how to ensure appropriate control of agency discretion."¹ The danger is that although discretion can be and, indeed, usually is used for the public's benefit,² it can also serve self-interested ends³ —for instance by allowing regulators to make their own lives easier.⁴ In other words, discretion carries with it the potential for strategic behavior by using flexibility intended for one purpose to achieve another, more self-serving purpose. The upshot of that realization, especially when combined with the reality that sometimes agencies behave arbitrarily, is that today's Supreme court often doubts whether agencies can police themselves. Invoking the presumption of judicial review, for example, Justice Kagan has recently explained that discretion is too important to leave in an agency's "hands alone."⁵ This sort of sophisticated understanding of discretion is key to administrative law.⁶

The Supreme Court, however, has a blind spot: judicial discretion. When it comes to agencies, the Justices frequently recognize both discretion's benefits and costs and the risk that agencies will behave strategically. But when it comes to judges, the court may put its skepticism aside.⁷ Both agencies and courts,

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however, exercise discretionary power,⁸ and both face complex incentives regarding how to use that power.⁹ Courts, moreover, like agencies, can issue decisions that profoundly affect the lives of individuals and the public, especially since "[a] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action."¹⁰

Perhaps the best example of the Court's blind spot is qualified immunity. In 2009, the Court in Pearson v. Callahan granted judges maximalist discretion in these cases: whenever someone seeks damages from many types of government officials based on a novel constitutional claim, the judges deciding the claim can choose—in their "sound discretion"—whether to decide the constitutional question or instead to simply dismiss it as barred by qualified immunity.¹¹ The intended purpose of this discretion is to empower judges to consider case-specific factors, such as whether an argument is well briefed,¹² before resolving a constitutional question. This new discretion can be, and no doubt often is, used in socially optimal ways. But it also has a dark side: such discretion empowers judges to act in "strategic" ways (i.e., ways that may benefit judges), especially when the discretionary power to recognize new constitutional rights is combined with the discretionary power to issue unpublished, nonprecedential opinions.

For instance, as explained in this Article, judges may choose to exercise their discretion to clarify constitutional doctrine for reasons that have nothing to do with, say, the objective quality of the briefing but rather because doing so is consistent with ideological preferences. Or judges may decline to clarify constitutional doctrine because the panel disagrees on how to do so, and it is unpleasant for judges to write and respond to dissents. These sorts of strategic uses of discretion may allow judges to avoid criticism, sidestep controversy, and advance ideological preferences, even though such outcomes are not the purpose of Pearson discretion. Needless to say, the Supreme Court did not intend to enable strategic behavior on the part ofjudges. But if administrative law teaches

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us anything, it teaches that when it comes to discretion, unintended consequences are real.

To appreciate the danger of discretion in qualified immunity cases, one must step back and understand qualified immunity and the procedural puzzle it creates. It is no secret that the Supreme Court pays close attention to suits against police officers and other government actors—especially when officers may be on the hook for damages. Nor is the reason secret: the Court's worry "is essentially the same as that in First Amendment overbreadth cases—that the prospect of civil liability will induce timidity and caution in the exercise of government powers that generally operate to the public good."¹³

Perhaps nowhere is the Justices' wariness about chilling government conduct more pronounced than with qualified immunity. Few disagree that officers who knowingly violate the Constitution should be punished—including by paying damages. Yet the threat of liability for unknowing violations may cause officers to flinch from the "discharge of their duties," to the detriment of innocent third parties who depend on state protection.¹⁴ Hence, it is now blackletter law that "officials [need] breathing room to make reasonable but mistaken judgments."¹⁵ And this "reasonable mistake" principle is no platitude. By their own account, "[b]ecause of the importance of qualified immunity 'to society as a whole,'" the Justices give special weight to these cases in deciding whether to grant certiorari.¹⁶

Qualified immunity, however, is also controversial.¹⁷ Even if an officer has violated the Constitution, she cannot be personally liable unless the rights were "clearly established" at the time. For example, even though strip-searching students can be unconstitutional, the officials who conducted a strip-search in Safford Unified School District v. Redding did not have to pay...