Channels, Fall 2017

Page 64 Minich • The Right Balance: Qualified Immunity and Section 1983 because the immunity prevents any liability. And since the purpose of creating this dicta is to clearly establish the law, it is assumed that future courts will treat this dicta as authoritative. Thus, this ruling would seem to violate an important and established judicial norm. On a similar vein, Saucier prompted objections over the principle of constitutional avoidance. 48 It is generally established that courts should not rule on constitutional questions if there is another basis on which the decision could be based. 49 Breyer’s concurrence (joined by Scalia and Ginsburg) in Brosseau v. Haugen expressed the concern that Saucier Sequencing, “rigidly requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e. g., qualified immunity) that will satisfactorily resolve the case before the court.” 50 Similarly, the dissent in Morse v. Frederick argued that the Court should have decided the case on “clearly established” grounds, which were rather straightforward, rather than issuing an “unwise and unnecessary” constitutional holding in keeping with Saucier Sequencing. 51 This understanding would mean that in any case in which immunity is awarded, the court should avoid addressing constitutional issues. However, if this argument is correct, it leaves the question as to how any court could clearly establish the law in light of qualified immunity. This view would leave constitutional rights unarticulated and thereby unprotected by the courts. Thus, others argued that statements on the merits in cases with granted immunity are a proper use of dicta to establish the law and do not resemble the type of judicial overreach that standards concerning dicta and advisory opinion are designed to curtail. 52 More practical concerns questioned how Saucier would affect the quality of precedents. If courts are required to address a constitutional question, they will inevitably address constitutional questions that are fact-bound, already pending in a higher court, or intermingled with state law issues. 53 This concern goes hand-in-hand with the problem of potentially poorly-considered precedents created in situations when the merits decision has no real effect on the outcome of the case and is therefore not thoroughly examined by the judge. 54 And on a deeper level, these issues would likely be exacerbated by insulation from appellate review. That is, if a court found that an officer had violated the constitution and yet awarded immunity, the plaintiff would have no interest in appealing the merits ruling, and the officer—as the prevailing party—would be unable to appeal. This also 48 Ibid. 49 “Constitutional Avoidance,” Wex Legal Dictionary, Cornell University Law School Legal Information Institute . https://www.law.cornell.edu/wex/constitutional_avoidance. See also Lyng v. Northwest Indian Cemetery Protective Assn. , 485 US 439,445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”) ( Citing Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C. , 467 U. S. 138, 157-158 (1984); Jean v. Nelson , 472 U. S. 846, 854 (1985); Gulf Oil Co. v. Bernard , 452 U. S. 89, 99 (1981); and Ashwander v. TVA , 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring).) 50 Brosseau v. Haugen, 543 U.S. 194, 201-202 (2004), (Breyer, concurring). 51 Morse v. Frederick, 127 S. Ct. 2618, 2638 (2007) (Breyer, concurring in the judgment in part and dissenting in part). 52 Jack M. Beermann, "Qualified Immunity and Constitutional Avoidance," The Supreme Court Review 2009, no. 1 (2009): 139-79. 53 Pearson v. Callahan , 129 S. Ct. 808, 818-821 (2009) 54 Ibid.