January 21, 2009

The Supreme Court makes Saucier discretionary.

Adopting a flexible approach, the Court achieves unanimity. I predicted that the court would overrule Saucier here.

It's a seemingly technical question of the order in which a court ought to decide whether there is a violation of a constitutional right and whether a state official ought reasonably to have known that. Saucier required that courts first ask whether there is a rights violation, but it's often more straightforward to say, whether there was a rights violation or not, the state official couldn't reasonably have known it.

Answering the latter question resolves the legal dispute — the rights claimant loses — but it deprives us of a statement about what the law is. On the other hand, if you say what the law is, and it doesn't affect the outcome of the lawsuit — because you've said there's a right but the rights claimant still loses — it violates the principle of avoiding unnecessary interpretations of constitutional law.

Justice Alito writes for the Court:
[Saucier] departs from the general rule of constitutional avoidance and runs counter to the “older, wiser judicial counsel ‘not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.’” Scott, 550 U. S., at 388 (BREYER, J., concurring) (quoting Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944)); see Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of”).
One might have thought that would lead to the decision to reject the Saucier ordering of the questions and put the question of the scope of the right second in all cases. But this is one of those pro-flexibility decisions. Let the trial judge, in his or her wisdom, put the questions in the order that works best. And not one Justice felt moved to concur to say that a more strictly principled rule should be imposed.

20 comments:

Ophir said...

Admit it, you only posted this because you like to say Saucier

Lynne said...

Pardon me, but doesn't 'Saucier Discretionary' sound like a tailor who provides naughty underwear to the Royal Family?

Ralph said...

I regret buying a teflon-coated saucier. It's difficult to turn some foods with a spoon.

vbspurs said...

Coincidentally, I just need a Saucier to complete my Royal Crown Derby "Black Aves" plate collection.

MadisonMan said...

Saucier was a very big name in my field a while ago -- a different Saucier than the Supreme Court one -- so posts about him always generate a double-take.

Chip Ahoy said...

Come on, this is serious!

OK, it's about reasonable searches, inn'it?

chuck b. said...

My steak aux trois poivres could have been saucier last night, if only the chef had used less discretion.

Triangle Man said...

Isn't a Saucier the person in a fancy restaurant who helps with the selection of condiments?

Triangle Man said...

Well, I'll be jiggered. There actually is a Saucier in a fancy restaurant.

vbspurs said...

Triangle Man linked:

[In] Le Guide Culinaire, a saucier is "responsible for all sautéed items and most sauces."

First, I can't believe none of Althouse commenters went to Johnson & Wales, and secondly, talk about micromanaging for real.

blake said...

I'm not ignoring this post.

Palladian said...

I have this saucier, only with a tin lining rather than stainless steel. And I'm very discreet about it.

Steve Dillard (aka Feddie) said...

Translation: Stare Decisis is fo' suckas

Brett said...

The problem with this ruling is that a certain claimed constitutional right violation can now be perpetually not "clearly established." Why wrestle with the facts of a case when a court can punt using a prior case to say "if it wasn't clearly established then it must not be now, even if there was a constitutional violation." Saucier's concern about stagnation was a legit one.

And who else is tired of hearing about "scarce judicial resources"? Deal with it. The rest of us have limited means too.

bill said...

First, I can't believe none of Althouse commenters went to Johnson & Wales

I've had some bread baking classes at the Charlotte campus through their Chef's Choice weekend classes. Does that count?

pete-who said...

The problem with this ruling is that a certain claimed constitutional right violation can now be perpetually not "clearly established." Why wrestle with the facts of a case when a court can punt using a prior case to say "if it wasn't clearly established then it must not be now, even if there was a constitutional violation." Saucier's concern about stagnation was a legit one.

And yet in an attempt to eliminate stagnation, Saucier made it even more likely. The new flexibility will now allow for more appeals, thus theoretically allowing more review as needed.

Smilin' Jack said...

whether there was a rights violation or not, the state official couldn't reasonably have known it....you've said there's a right but the rights claimant still loses - But this is one of those pro-flexibility decisions. Let the trial judge, in his or her wisdom, put the questions in the order that works best.

Yes. It's important to maintain the principle that our rights are subject to the ignorance of state officials and the whims of judges.

XWL said...

"The Supreme Court makes Saucier discretionary"

Who do they think they are making Sauciers discretionary?

Unless they're all culinary experts, I think it's best left up to the head chef at each restaurant whether or not their saucier is discretionary.

Brett said...

Pete-who, I don't get it. How will a discretionary qualified immunity analysis translate into more appeals? Aggrieved litigants take matters up regardless.

All I'm saying is that without a determination on the merits of the case, constitutional law is in jeopardy for those wronged by state actors. Declaring a law isn't clearly established before declaring what the law is doesn't make much sense.

chickenlittle said...

Does "Saucier" rhyme with "croupier," or "fancier," or "glacier"?