Volokh Conspiracy: Why the Supreme Court Reviews So Many Qualified Immunity Cases by Orin Kerr:
Here’s a theory, at least.
My friend and co-blogger Will Baude asks an interesting question: What explains the Supreme Court’s continued interest in reviewing seemingly fact-bound lower court decisions on qualified immunity? Will writes:
I have criticized the Court’s qualified immunity doctrine at length, but I do understand that one might disagree, especially if one believes in evolving judge-made law (see this draft response from Hillel Levin and Mike Wells) or might think the issue so settled by stare decisis that my critiques are merely academic. Still, it is worth noting that the Court treats qualified immunity not just as ordinary settled law, but as an area of law so important that it is worth deciding a series of factbound cases that would never earn the Court’s attention if they involved a different legal issue. Moreover, the Court seems uninterested or unable to find such cases where a lower court wrongly denied relief to a person whose constitutional rights were violated.
I remain unconvinced that this special legal treatment has a good legal basis.
I’ve wondered about this, too, and I wanted to offer a possible explanation. I apologize that my explanation is long, tentative, and perhaps a bit rambling. I hope there’s at least the kernel of a useful idea in here, but of course you’ll be the judge of that.