William & Mary Bill of Rights Journal


Tobias Kuehne


Substantial parts of the history of qualified immunity remain unwritten. While qualified immunity is hotly debated among scholars and practitioners, we know little about qualified immunity’s origins, and the institutional pressures that shaped its historical path. This Article provides that missing history. It begins by observing the striking parallels between Pierson v. Ray—qualified immunity’s origin case—and Marbury v. Madison. Both were suits against government officials to vindicate individual rights granted by a congressional statute, and both cases arose while the Court was under intense political pressure. In each case, the Supreme Court struck a surprising middle ground: It insisted that those individual rights should be broadly available but reserved judicial discretion on when to provide a remedy. In both cases, the Court thus declined to apply a broad statutory grant of authority and interposed a new, judicially created authority—judicial review in Marbury, and qualified immunity in Pierson. And in both cases, the Supreme Court turned political pressures to its advantage.

But while Marbury is recognized as a success story, qualified immunity is not. In the first decade after Pierson, the Court still tried to use qualified immunity to position the judiciary as a mediator between citizens and government officials in § 1983 and Bivens actions. This effort, led by Justice Byron White, culminated in Harlow v. Fitzgerald, which articulated the modern qualified immunity standard. But ever since Harlow, the Supreme Court has abandoned the Marburian middle position of balancing rights and remedies. Spearheaded by Chief Justice William Rehnquist, the Court began to limit the availability of both judicial remedies and individual rights in qualified immunity actions.

Marbury’s success story—and qualified immunity’s failure—thus gives guidance on how a politically beleaguered Court should mediate between citizen plaintiffs and officer defendants: recognize the broad availability of individual while granting a partial victory to the Court’s critics, and carve out a new domain of authority that enhances the judiciary’s independence and legitimacy in the process. This Article traces qualified immunity’s historical departure from its Marburian wisdom, points to a litigation strategy that could restore it, and derives some deeper lessons about the Court’s institutional limitations.