Monday, February 14, 2022

Justice Thomas’s Critique of Qualified Immunity

An Originalist's Perspective on the Judicial Doctrine

By Patricia Whelan
Patricia Whelan is a current 2L at Albany Law School. Prior to attending Albany Law, she graduated from the Pennsylvania State University in 2020, where she majored in Criminology and minored in Sociology.
At Albany Law, Patricia is a member of the Albany Law Review, the Chief Justice of the Phi Alpha Delta Law Fraternity, and the ABA At-Large Senator for the Student Bar Association. She has interned for the Third Judicial District Town and Village Courts Unit and served as the Law Student Liaison for the ABA Section of State and Local Government Law from 2020-2021.
Patricia is now a Law Clerk at Pierro, Connor & Strauss, LLC.

Justice Clarence Thomas has prominently defended his take on originalism, which demands adhering to the text of the United States Constitution in a manner that is consistent with how it would have been understood or was intended to be understood at the time it was ratified in 1789. The judicial philosophy of originalism asserts that all text in the Constitution must be interpreted and applied based on historical accounts and the original understanding of the text. According to Justice Thomas, originalism is the best and most legitimate way to interpret the Constitution and other legal texts.

Over the course of his tenure on the Supreme Court, Justice Thomas has shaped his own unique approach to interpreting the Constitution and other texts, all the while keeping in line with the fundamentals of originalism. Justice Thomas supports the conviction that originalism is the jurisprudence most compatible with the American Government and the original intentions of the Founding Fathers. Moreover, he “rejects the notion… that the Constitution is a ‘living document’ and that Supreme Court justices should creatively adjust the meaning of its terms…”

This paper examines the relationship between Justice Thomas’ judicial philosophy of originalism and the doctrine of qualified immunity. This paper introduces the cultural and historical doctrine of qualified immunity through the originalist perspective and posits that the Court should reconsider the legitimacy of this judicial doctrine. Further, this paper argues that from Justice Thomas’ perspective, qualified immunity has a weak foundation in legal texts and at common law. From the premise that it is not well supported under the methodology of originalism, this paper discusses Justice Thomas’ concerns with the doctrine of qualified immunity and thus, the implications it has for his jurisprudence.
To read the paper, open HERE