“Applied to a judicial officer, this would mean that an action would [result in liability] if it was done with actual knowledge that it was incorrect or with reckless disregard of whether it was incorrect or not.”241 Proponents argue that adopting this standard would deter judicial acts “motivated by prejudice, bias, anger, or ill-will, or the result of inattention, neglect of duty, or incompetence.”242In addition, of course, any diminution of judicial immunity would increase the compensation for those wronged by judicial malefaction.
The chief drawback to this proposal is that most aggrieved litigants would readily allege that a judge’s conduct had been malicious, or had met any other requisite standard, and the truth of such allegations could not be determined without a trial; the damage to the policies supporting immunity would be inflicted by the fact of a trial, no matter what the verdict.243 The most effective argument against the malice standard, however, is that the premises underlying it are mistaken. Judicial immunity exists not to protect judges but to protect litigants.
This freedom from action and question at the suit of an individual is given by law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer judgment ought to be.244On the basis of “modern social theory, including modern legal theory,”245 Feinman and Cohen conclude that this policy argument cannot be resolved in any objectively satisfying manner:
Values are subjective because they are solely a matter of individual choice and they are arbitrary because once the choice is made little is left to be said. Values are not subject to rational debate or discussion and one person can rarely persuade another of the rightness of certain values because of the irreconcilable antinomy of reason and value.... [T]he resolution of the policy formula requires a weighing of the costs of a liability rule against the benefits. Weighing implies a scale, an objective measure, but the choice among competing values is itself reflective of more basic values and is therefore subjective and arbitrary.... Each decisionmaker values compensating injured parties, sanctioning wrongdoers, and maintaining the efficiency of the legal system, but when those common values conflict, as in the judicial liability context, no independent means of resolving the conflict is available.246This sort of conclusion is more an indictment of relativism than of legal reasoning. When one evaluates value choices in a legal context, one is not trying to prove the validity or truth of a scale of values, but only the consistency of that value choice with other value choices made, accepted, and legitimated by society. The inconsistency of according absolute immunity for the protection of judicial independence, but only qualified immunity for the protection of the independence of most other government officials, is what one finds disturbing about the doctrine of judicial immunity — not the subjectivity of value judgments, as Feinman and Cohen suggest.
The earlier discussion of the origins of judicial immunity shows, however, that appeal has a much greater significance in the context of judicial immunity.247 Judicial immunity developed to protect the appellate system from collateral attacks on judgments, thus channeling actions upward through the appellate hierarchy for the correction of error. The availability of appellate correction of error is, therefore, absolutely central to the logic of judicial immunity. For this reason, judicial immunity should not be available when, as in Sparkman, the actions complained of prevented the complainant from seeking normal appellate correction of error.
The limiting principle proposed here is hardly radical. At its most fundamental level, it is nothing more than an application of the maxim cessante ratione legis cessat ipsa lex (where the reason for the rule stops, there stops the rule).248 Its application would leave the vast majority of precedents undisturbed249 and would deny immunity only in case like Sparkman, in which the judge’s actions denied the plaintiff access to the appellate system. The standard would be a return to sound precedent and would result very neatly in the establishment of limits on judicial immunity that are determined by the policy basis of the doctrine.250
