Will Baude

And we don't trust them.

And so we've got to watch them like a hawk and second guess them because they are sort of subverting our authority.

Now, they haven't ever said that about qualified immunity.

They haven't ever said, there are a bunch of lower court judges out there who don't believe in qualified immunity, and we've got to second-guess them, too.

There are.

It would be a little embarrassing for them to say, because for habeas, there's like a statute that makes it very hard to get habeas.

And for qualified immunity, there's a statute that doesn't say anything about it.

Yeah, that says you're supposed to be able to sue any time a state official violates your constitutional rights.

So at some point, they would have to explain why they are as mad about people subverting sort of made-up, atextual, illegal restrictions on remedies as they are about people restricting real law.

The Supreme Court, about 50 years ago, when it first started taking seriously all these constitutional claims, quickly worried that it couldn't take them too seriously.

And so it created a sort of doctrine to make it harder to sue.

And then just each decision repeats that the previous decisions have long recognized it.

So...

Yeah, at least nothing like the modern rule.

Like if you dig around in history and squint, you can find times in the 19th century and at the founding where courts sometimes came up with various excuses to let officials get away with violating the law.

If you kind of squint at those, you could sort of imagine how they morphed into qualified immunity one day.

But there's a lot of morphing.

Yeah.

And again, in a responsible world, we would have something like called the common law, where there'd be a long history of unwritten decisions that establish certain precedents and not others.

And courts would use that as a background interpreting the statute.