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Page 66 Minich • The Right Balance: Qualified Immunity and Section 1983 Justice Scalia strongly opposes this method of “snookering” 65 ). 66 Judges also may be tempted by the potential for strategic rulings that comes with so much discretion. 67 Because the Pearson decision increases judges’ ability to influence the possibility of appeal and the likelihood of appeals courts reaching the merits, they are motivated to act in their best policy interests rather than as neutral arbiters. Pearson also left open the question of constitutional development. Although the Court noted in both Saucier and Pearson that much of the legal system’s articulation of rights relies on constitutional rulings in § 1983 claims, the absence of clear guidance leaves little incentive for courts to address difficult constitutional questions, as well as broad discretion to skip over the merits without necessarily explaining why. And the lower courts do just that, leading the justice system definitively away from constitutional rights development. 68 Practically speaking, this means that every time a court declines to reach the merits of a § 1983 constitutional claim because it grants immunity, the law remains not “clearly established.” Thus, the next case, even if virtually identical, will have the same result: immunity and no constitutional ruling. If the law is never clearly established because the merits are always passed over, rights become constricted as they remain undetermined by the courts. 69 This is a devastating blow to constitutional rights as a whole. Indeed, “[a]t a time in which it is vital for constitutional law to keep pace with changes in technology, social norms, and political practices, this trend toward granting immunity while failing to articulate constitutional rights will surely have far-reaching negative repercussions.” 70 The Current Era The latest landmark cases for qualified immunity include Camreta v. Greene , which weighed in on appellate insulation, rights articulation, and standards for reaching the merits. This case opened up the possibility for prevailing party review—accepting appeals from officers who won immunity but lost merits rulings. The Court wrote, “We conclude that this Court generally may review a lower court's constitutional ruling at the behest of a government official granted immunity.” 71 They limited this doctrine, though, by requiring that all parties involved still have prospective interest, or a “‘personal stake’ in the suit.” 72 Not only does this weed out cases without a prospective effect on the parties involved, it also ensures that 65 City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015). 66 Beermann, 143 ff. 67 Michael T. Kirkpatrick and Joshua Matz, “Avoiding Permanent Limbo: Qualified Immunity and the Elaboration of Constitutional Rights from Saucier to Camreta (and Beyond),” Fordham Law Review 80, no. 2 (2011): 643-679. 68 Stephen R. Reinhardt, "The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences," Mich. L. Rev. 113 (2014): 1219-1254, at 1244 - 1249. (Citing Karen Blum et al., Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633, 657 (2013) at 647.) 69 Belzer at 654. 70 Reinhardt at 1250. 71 Camreta v. Greene , 131 S. Ct. 2020, 2026 (2011). 72 Camreta v. Greene at 2028 (quoting Summers v. Earth Island Institute , 555 U.S. 488, ___, 129 S.Ct. 1142, 1148-1149, 173 L.Ed.2d 1 (2009)).