Crawford-El v. Britton

Justice Kennedy,

concurring.

Prisoner suits under 42 U. S. C. § 1983 can illustrate our legal order at its best and its worst. The best is that even as to prisoners the government must obey always the Constitution. The worst is that many of these suits invoke our basic charter in support of claims which fall somewhere between the frivolous and the farcical and so foster disrespect for our laws.

We must guard against disdain for the judicial system. As Madison reminds us, if the Constitution is to endure, it must from age to age retain “th[e] veneration which time bestows.” James Madison, The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The analysis by The Chief Justice addresses these serious concerns. I am in full agreement with the Court, however, that the authority to propose those far-reaching solutions lies with the Legislative Branch, not with us.

*611Justice Scalia,

with whom Justice Thomas joins, dissenting.

As I have observed earlier, our treatment of qualified immunity under 42 U. S. C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted, and that the statute presumably intended to subsume. See Burns v. Reed, 500 U. S. 478, 498, n. 1 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). That is perhaps just as well. The §1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U. S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979, 42 U. S. C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law. See Monroe, 365 U. S., at 183; id., at 224-225 (Frankfurter, J., dissenting). As described in detail by the concurring opinion of Judge Silber-man in this case, see 93 F. 3d 813, 829 (CADC 1996), Monroe changed a statute that had generated only 21 cases in the first 50 years of its existence into one that pours into the federal courts tens of thousands of suits each year, and engages this Court in a losing struggle to prevent the Constitution from degenerating into a general tort law. (The present suit, involving the constitutional violation of misdirecting a package, is a good enough example.) Applying normal common-law rules to the statute that Monroe created would carry us further and further from what any sane Congress could have enacted.

We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified *612immunities for the statute we have invented — rather than applying the common law embodied in the statute that Congress wrote. My preference is, in undiluted form, the approach suggested by Judge Silberman’s concurring opinion in the Court of Appeals: extending the “objective reasonableness” test of Harlow v. Fitzgerald, 457 U. S. 800 (1982), to qualified immunity insofar as it relates to intent-based constitutional torts.

The CHIEF Justice’s opinion sets forth a test that is “along the lines suggested by Judge Silberman,” ante, at 602, but that differs in a significant respect: It would allow the introduction of “objective evidence” that the constitutionally valid reason offered for the eomplained-of action “is actually a pretext.” Ibid. This would consist, presumably, of objective evidence regarding the state official’s subjective intent — for example, remarks showing that he had a partisan-political animus against the plaintiff. The admission of such evidence produces a less subjective-free immunity than the one established by Harlow. Under that ease, once the trial court finds that the constitutional right was not well established, it will not admit any “objective evidence” that the defendant knew he was violating the Constitution. The test I favor would apply a similar rule here: once the trial court finds that the asserted grounds for the official action were objectively valid (e. g., the person fired for alleged incompetence was indeed incompetent), it would not admit any proof that something other than those reasonable grounds was the genuine motive (e. g., the incompetent person fired was a Republican). This is of course a more severe restriction upon “intent-based” constitutional torts; I am less put off by that consequence than some may be, since I believe that no “intent-based” constitutional tort would have been actionable under the § 1983 that Congress enacted.