My posts this week, based on a forthcoming article excerpted here, have made several arguments against qualified immunity. The Supreme Court created qualified immunity based on a misunderstanding of common law defenses in place when Section 1983 became law. The Court has justified its dramatic expansion of qualified immunity in the name of policy aims that the doctrine does not actually advance. The Court's qualified immunity jurisprudence hinders government accountability and inhibits the development of constitutional law. And alternative justifications for the doctrine are equally unconvincing.

To date, the Supreme Court has not granted certiorari on any qualified immunity cases for next term. But if the past is precedent, they will soon. If the Supreme Court accepts Justice Thomas's invitation in Ziglar to reconsider qualified immunity, takes seriously available evidence demonstrating that the doctrine neither comports with its historical antecedents nor achieves its intended policy goals, and decides to take action, there are several possible paths forward.

The most dramatic course would be to eliminate qualified immunity or conform qualified immunity doctrine to common law defenses in existence in 1871, when Section 1983 became law. If the Court is inclined to take this type of action, I agree with Will Baude that stare decisis should not be an impediment. Principles of stare decisis do counsel against overruling statutory precedent and, instead, leaving modifications of such rules to Congress. But, as Baude has observed, the Court does not treat qualified immunity as a "purely statutory doctrine left to the pleasure of Congress," and its perpetual "tinker[ing]" with both procedural and substantive aspects of the doctrine suggests "the Court takes more ownership of it than more orthodox statutory doctrines."

If the Supreme Court is disinclined to overrule qualified immunity because of stare decisis or for any other reason, it could, instead, revisit some of its prior qualified immunity decisions to better align the doctrine with evidence of its actual role in constitutional litigation. For example, in Harlow, the Court eliminated inquiry into officers' subjective intent so that qualified immunity could more easily be resolved at summary judgment. John Jeffries has suggested that the Court's narrow interpretation of "clearly established" law—requiring a prior finding of unconstitutionality in a very similar case from a circuit or the Supreme Court—may also be prompted by its interest in facilitating dismissal at summary judgment. But the Court's subsequent decisions strengthening summary judgment standards arguably made Harlow unnecessary, as Justice Kennedy has observed. Moreover, evidence that qualified immunity rarely ends cases at summary judgment confirms that the doctrine is ill-suited and unnecessary to shield government officials from trial.

The Supreme Court has recognized that its decision in Harlow significantly altered qualified immunity doctrine to protect government officials from the burdens of litigation. Now, faced with evidence that qualified immunity does not achieve these intended policy goals, and reasons to believe that the doctrine jeopardizes interests in government accountability, it is incumbent on the Court to revisit its standard. Plaintiffs should be able to defeat a qualified immunity motion by pointing to evidence of an officer's bad faith. And the Court should broaden its definition of clearly established law—by making clear that courts of appeals can clearly establish the law, by defining clearly established law at a higher level of factual generality, and by recognizing obvious constitutional violations, as it did in Hope, without reference to an analogous case. These adjustments would better calibrate the doctrine's balance between interests in advancing government accountability and interests in shielding government officials from litigation when they have acted reasonably.

Another possibility would be for the Court to keep the framework for qualified immunity largely intact, but allow or encourage lower courts to consider whether qualified immunity would achieve its intended policy goals in particular cases. It makes no sense for government officials to receive qualified immunity if they are virtually certain to be indemnified, because those officials will suffer no financial consequences of a damages award. It makes no sense to ignore evidence of government officials' subjective intent if such evidence is available when a qualified immunity motion is being decided. And it makes little sense for officials to receive qualified immunity at or after trial, because the doctrine will do nothing to shield officials in these cases from burdens associated with litigation. Encouraging lower courts to take account of this type of evidence when deciding qualified immunity motions would be a first step toward more coherence between the application of qualified immunity and the justifications offered for its existence.

If the Supreme Court continues to issue qualified immunity decisions that ignore evidence about its fundamental flaws, lower courts may need to take matters into their own hands. They have at least two tools at their disposal. First, lower courts can do what Richard Re calls "narrowing from below." Re describes narrowing from below as occurring when a court interprets Supreme Court precedent "reasonably" but "more narrowly than it is best read," and describes narrowing as legitimate when precedent is "ambiguous." Supreme Court qualified immunity decisions are rife with ambiguity, and lower courts can decide to read those ambiguous decisions narrowly. Indeed, Justice Thomas's concurring opinion in Ziglar can even be read as an invitation for lower courts to do so.

Judges additionally have significant discretion to manage qualified immunity litigation practice in their courts and can do so in ways that address some of the concerns I have raised. When defendants file frivolous interlocutory appeals of qualified immunity denials, district courts should certify the appeals as frivolous and refuse to stay the cases. When defendants file non-frivolous interlocutory appeals of qualified immunity denials, circuit courts should make every effort to decide those appeals quickly. District court judges can require pre-motion conferences as part of their individual rules, and can discourage defendants from filing meritless qualified immunity motions that will increase costs and delay. District and circuit courts' rulings on qualified immunity motions can answer whether there was an underlying constitutional violation to assist in the development and articulation of constitutional principles, or explain why they are declining to do so. None of these adjustments strikes qualified immunity to the core, but are small steps that lower courts can take while waiting for the Supreme Court to make things right.

A few years ago, Justice Kennedy gave a speech in which he observed: "To re-examine your premise is not a sign of weakness of your judicial philosophy. It's a sign of fidelity to your judicial oath." I hope that Justice Kennedy and his colleagues, taking these words to heart, will agree to reexamine the premises underlying qualified immunity. And I hope that, when they do, they take the dramatic action that is compelled by the record.