Nielson & Stancil on Cert-Proofing and Qualified Immunity

Aaron L. Nielson and Paul J. Stancil (Brigham Young University - J. Reuben Clark Law School and Brigham Young University, J. Reuben Clark Law School) have posted Civil Rights Litigation in the Lower Courts: The Justice Barrett Edition (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

Now that Justice Amy Coney Barrett has joined the United States Supreme Court, most observers predict the law will shift on many issues. This common view presumably contains at least some truth. The conventional wisdom, however, overlooks something important: the Supreme Court’s ability to shift the law is constrained by the cases presented to it and how they are presented. Lower courts are thus an important part of the equation.

Elsewhere, the authors have offered a model of certiorari to demonstrate how lower courts in theory can design their decisions to evade Supreme Court review; they also explain why such “cert-proofing” tools are problematic. In this Article, they apply that model to civil rights litigation involving qualified immunity, with particular focus on Justice Barrett’s confirmation.

On the assumption that Barrett’s views will be more like those of the late Justice Antonin Scalia (for whom she clerked) than those of the late Justice Ruth Bader Ginsburg (whom she replaced), the model predicts lower court judges who do not share Barrett’s views will be tempted, at the margins, to try to evade Supreme Court review. This temptation may be particularly strong for cases that involve qualified immunity, which present unique cert-proofing opportunities. At the same time, the model predicts judges who do share Barrett’s views will be less inclined to use such tools. Thus, although there likely will be no meaningful change in how most cases are decided, the upshot of the model is that in marginal cases it is possible that lower courts will change how they address civil rights litigation.