Should the question whether a right has been violated precede the question whether a reasonable person would know that a right has been violated?

Tony Mauro notes that the Supreme Court's cert grant yesterday in Pearson v. Callahan imposed a new issue on the parties: whether Saucier v. Katz should be overruled:

The 2001 decision in Saucier established a two-step test for deciding whether police deserve immunity from lawsuits claiming they violated someone's constitutional rights. First, it must be established that the claimant's constitutional rights were violated. If so, the next question is whether that right was clearly established — in other words, well-enough known that a reasonable officer should have known what it was.

Don't the questions seem out of order under Saucier? If the question whether there is a right is unclear, there will be immunity and the defendant will win, resolving the dispute. The question will also be hard to answer if it's unclear, and it is also unnecessary to the outcome of the case. So why put it first? The main reason is to extract an articulation of the law from the court, but ordinarily the rule is to avoid unnecessary questions of constitutional law.

But maybe we should go against general rule so that the law doesn't remain unclear. Imagine case after case resolved on the question of immunity, because the law is unclear. When will the law get clear? There seems to be a chronic dysfunction in the lawsaying process without Saucier. And this problem is not limited to lawsuits against the police. All sorts of lawsuits against government actors raise qualified immunity defenses.

It should be noted that Justice Breyer questioned Saucier in his concurring opinion in a 2004 case called Brosseau v. Haugen — where he was joined by the very interesting combo of Scalia and Ginsburg:

I am concerned that the [Saucier] rule rigidly requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court. Indeed when courts’ dockets are crowded, a rigid “order of battle” makes little administrative sense and can sometimes lead to a constitutional decision that is effectively insulated from review, see Bunting v. Mellen, 541 U.S. 1019, 1025 (2004) (Scalia, J., dissenting from denial of certiorari). For these reasons, I think we should reconsider this issue.

Here's the Scalia opinion in Bunting v. Mellen. Here's his key point:

I think it plain that this general rule should not apply where a favorable judgment on qualified-immunity grounds would deprive a party of an opportunity to appeal the unfavorable (and often more significant) constitutional determination. That constitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases.

So, you see there is something dysfunctional in front-ending the substantive question whether there is a right. The government hears that there is a right, and this will affect what it can do in the future, but then the government defendant wins on the immunity defense, and therefore can't appeal. Justice Scalia explicitly expressed hostility to the lower court judges' capacity to announce the existence of new right while cutting off the power of the Supreme Court to review them.

I predict Saucier will be overruled.