A. The Special Status
The Supreme Court treated these facts as essentially irrelevant to the issue of immunity. The opinion first summarized the existing law and found that a judge would not be liable unless his acts were clearly beyond his jurisdiction or were not judicial in nature.16 It concluded that Judge Stump's acts were not clearly beyond his jurisdiction because by statute he had "original exclusive jurisdiction in all cases at law and equity whatsoever," and because no statute or decision prohibited such a court of general jurisdiction "from considering a petition of the type presented to Judge Stump."17 The fact that the order may have been illegal under state law did not deprive the judge of jurisdiction,18 nor did the fact that the method by which he reached his decision may have been unconstitutional.19 Finally, the Court rejected the claim that the judge's actions were non-judicial. The acts were judicial because the judge's function was one "normally performed by a judge" and because the mother had dealt with Judge Stump with the expectation that he was acting in his judicial capacity.20 Accordingly, Judge Stump was held to be immune no matter how malicious his motive for the sterilization order might have been and regardless of how obvious the illegality of his acts should have been to him. The Court justified this broad rule of immunity with a reference to the need for a judge to act "upon his own convictions, without apprehension of personal consequences," and with a remark about the difficulty of the judge's duties and his "painful sense of responsibility."21
In contrast to its approach to judicial immunity, and without regard for the difficulty of their decisions or the painfulness of their senses of responsibility, the Court has recently and emphatically declined to provide similarly broad immunity to most executive officers.22 Such officers can be liable even if their acts were colorably within their statutory authorization and clearly "executive" in nature.23 For executive functions, immunity is triggered not by jurisdictional or generic concepts but by the existence of a reasonably-based, good faith belief that the action was constitutional.24
Less obvious, perhaps, is the fact that absolute judicial immunity also appears to be broader than the "absolute" immunity granted to legislators. Both judges and legislators are absolutely immune only for acts done within the judicial or legislative spheres, respectively. But the scope of this immunity is, in fact, broader for judges because the method of defining the judicial function has been less restrictive. In Stump, the Court explicitly defined the judicial function largely according to what is "normally" done by a judge.25 Judge Stump's actions were described as "normal" because he had at least colorable jurisdiction and because "judges normally entertain petitions with respect to the affairs of minors."26 The Court expressly denied that any illegality in the judge's procedures vitiated the judicial nature of his acts.27 The Court thus defined "judicial" by a formalistic inquiry into whether a normal "case" was presented, not according to the normalcy or legality of the methods used to resolve the case.
A different approach to defining the legislative function was taken in Gravel v. United States,28 in which the Court held that legislative immunity does not extend to the private publication of classified materials used by a Senate subcommittee. Although senators "normally" communicate with their constituents about governmental affairs, and although this informing function is important to their duties as representatives,29 the Court explained: "That Senators generally perform certain acts in their official capacity...does not necessarily make all such acts legislative in nature.30 In addition to the informing function, the Court has identified traditional legislative efforts to lobby the executive branch and the deliberative process leading up to a vote as functions normally performed by a legislator that are not necessarily "legislative.”31 Such acts are defined as outside the legislative sphere when they are unnecessary to the "due functioning" of the legislative branch or are inconsistent with the integrity of that process.32 Of course, the illegality of the act is a prime determinant of whether it is necessary to the due functioning of the legislature. Bribes, for example, "gravely undermine legislative integrity and defeat the right of the public to honest representation," thus endangering the integrity of the legislative process that legislative immunity is designed to protect.33
The Court's method of defining the legislative function is plainly inconsistent with the method used in Stump to define the judicial function.34 If Stump had been analyzed consistently with the legislative immunity cases, the Court would not have stopped at describing the matter before Judge Stump as a case "normally" handled by a judge. It would have further inquired whether the procedures used in handling the "case" were necessary to the "due functioning" of the judicial branch. Two factors relevant to this determination would have been whether the procedures were illegal and whether they undermined the integrity of the judge's deliberative process.35 A bribe undermines the integrity of the legislative process by exposing the legislator to improper, irrelevant influences; such exposure is not a part of the legislative process despite its close connection to the core of the legislative process, the act of voting.36 If so, it is at least worth inquiry whether an ex pare proceeding involving the decision to sterilize an unnotified and unrepresented minor undermines the integrity of the judicial process to the extent that such procedures cannot fairly be called judicial acts despite their close connection to judging a case.37
The Court has narrowed legislative immunity by injecting a normative factor into the definition of the legislative function. Notions of both jurisdiction and generic function have been made largely irrelevant to the issue of immunity for malicious acts of those exercising the executive function. In defining the immunity of judges, however, the Court has been entirely formalistic. The next section explores the reasons the Court has given for the special status it has thus created for the immunity of those exercising the judicial function.
B. The Justifications
1. As contrasted to the legislative function
At the federal level, legislative immunity is founded on constitutional text.41 At the state level, legislative immunity is also constitutionally based to the extent that at least the rudiments of separation of powers principles must be protected from federal interference.42 Even if not technically based on constitutional text, legislative immunity at the state level serves the same policies that are of constitutional magnitude at the federal level. In contrast, judicial immunity, whether at the federal or state level, is court-made law of somewhat mysterious origins.43 Accordingly, the legal issues involved in determining the proper scope of immunity in civil rights actions are entirely different as between the two types of immunity. With legislative immunity, two policies of constitutional importance - legislative independence and the individual's substantive rights - must be accommodated. With judicial immunity, the protection of the individuals constitutional rights is limited only by common law principles designed to protect the smooth functioning of a governmental institution.
The constitutional policies that underlie legislative immunity relate to the most fundamental principles of republican government.44
As the Court has acknowledged:
[Legislative immunity] was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.45The Court has consistently stated that judicial immunity also protects independence and integrity,46 but the purposes of legislative and judicial immunity are not coordinate. Legislative immunity is embodied in constitutional text in order to protect the independence of the legislature from the excesses of the other branches of government. Whether the intimidation arises from criminal actions initiated by the executive branch or from civil actions harnessing the "potentially hostile" power of the judicial branch, the protections are against incursions by the other branches of government.47 Legislative immunity protects the basic constitutional structure of separation of powers. It reflects the framers' pessimistic assumption that "power is of an encroaching nature and... ought to be effectively restrained from passing the limits assigned to it."48 In contrast, judicial immunity protects against the threat posed by individual citizens who can injure the judicial function only if the courts are unable or unwilling to protect themselves.49
The Court has minimized the external dangers to the legislature that the framers took seriously enough to guard against in the Constitution. Thus, the classic threat of unjustified criminal prosecutions by the executive against legislators has been described by the Court as "remote," although not "discounted entirely."50 In fact, the Court has turned the framers' assumptions upside down by pointing to the protections afforded by the judiciary as one reason for minimizing the possibility of interference with the legislative process.51 The Court has pointed to such judicial protections despite the fact that the legislative process can be and has been interrupted and frustrated for years by citizens' use of the judicial process.52 At the same time, the Court has taken seriously the "danger" that the judiciary, somehow adequately able and motivated to protect Congress from the executive, is unable to protect itself from suits by individual citizens. The possibility that the judiciary might be sufficiently "alert to the possibilities of artful pleading" to protect itself by terminating "insubstantial lawsuits" has never been found a sufficient reason to open judges to the threat of suits for their malicious acts.53
The constitutional status of legislative immunity not only undermines the Court's apparent assessment of the relative importance of the interests involved in cases of legislative and judicial immunity, but also casts substantial doubt on its construction of the Civil Rights Act of 1871.54 In Tenney v. Brandhove,55 the Court held that the framers of section 1983 could not have intended by their general language to impinge on legislative immunity because that doctrine was "so well grounded in history and reason" at the time the statute was drafted.56 Later, in Pierson v. Ray,57 the Court purported to rely on the same reasoning in carving out judicial immunity from the reach of the Civil Rights Act:
The legislative record gives no clear indication that Congress intended to abolish wholesale all common law immunities. Accordingly, this Court held in Tenney v. Brandhove, that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established....58Despite this language, it was not a mere common law immunity which the Tenney Court had presumed to be unaffected by congressional action. It was, as the opinion explained at length, a tradition "carefully preserved in the formation of the State and National Governments."59 Clearly, it is appropriate to require affirmative and persuasive proof that Congress intended to limit a principle, such as legislative immunity, thought to have constitutional significance. The avoidance of difficult constitutional questions and the presumption that legislation is constitutional are accepted canons.60 The same requirement is not at all appropriate when "Congress enacts a statute to remedy the inadequacies of the pre-existing law, including the common law,"61 and common law is the basis for judicial immunity.
The broader protection afforded by the Court to judicial immunity, compared to legislative immunity, is thus inconsistent with the constitutional status of the policies underlying legislative immunity and with normal principles of statutory construction. Nor can the relative narrowing of legislative immunity be justified on the basis that inquiries into judicial conduct are more difficult than those relating to legislative action. It would seem more feasible to examine and evaluate the knowledge and behavior of a single judge than to attempt a similar inquiry into the behavior of perhaps hundreds of legislators.62 Judges normally act on the basis of information provided in a record and with respect to a single, identified case. Legislators act on the basis of knowledge gained on public streets and in private cloakrooms; they act not to decide a single case but to accommodate competing, ongoing interests. Such practical considerations favor a broader rule of immunity for legislators than for judges.
The narrower area of legislative immunity might be thought to be harmless, since - under the Court's formulation - legislators can be liable only for acts that do not promote the proper functioning of the legislature.63 Even assuming that there are only minimal dangers in entrusting to courts the determination as to what is necessary for proper legislating,64 the broader, formalistic conception of the "judicial function" is not justified. Courts are better qualified to decide at what point procedures become so unfair and so illegal as not to promote the due functioning of the judiciary than they are qualified to determine, for example, what influences are proper for a legislative vote or how a legislator should communicate with his constituents. To the extent that the normative definition of "legislative function" is harmless or even beneficial, the Court should utilize normative factors even more liberally in defining "judicial function".
a. The Common Law.
The final problem with the Court's reliance on the common law is that the rationales underlying the older cases establishing absolute judicial immunity are not entirely inconsistent with modern standards that qualify executive immunity. In the main case relied on to establish absolute judicial immunity, Bradley v. Fisher,76 the Court held that a judge would not be immune for an illegal act if the act were in the "clear absence of all jurisdiction."77 The Bradley Court distinguished such acts from acts done merely "in excess of jurisdiction" and from challenges to the "manner in which...jurisdiction was exercised.78 For example, if a probate court were to sentence a felon, its act would be in the clear absence of jurisdiction; if a criminal court were to sentence a felon to an excessive term, its act would be in excess of jurisdiction; and if a criminal court were to violate principles of due process in trying a felon, its act would involve the manner in which jurisdiction was exercised.79 The Court limited potential liability to the first of these three categories because, "where jurisdiction over the subject-matter is invested by law in the judge...the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case ... ,"80 The difficulty is, of course, that subject-matter jurisdiction normally is as much a question of law for the court as are the manner and extent of the exercise of that jurisdiction.81 A court must decide whether it has the authority to try a felon just as it must decide what procedures it must follow and what sentence it may impose. Obviously, the three categories all identify illegal use of authority, the differences pointing largely to the degree of error.82
The Bradley Court's terminology was an effort to identify the kind or degree of illegality for which judges should not be immune. To categorize an act as being in the "clear absence of jurisdiction" does not explain why this type of misuse of authority should expose a judge to liability while the other unauthorized acts do not, except to suggest that liability should depend in part on the obviousness of the mistake of law. Indeed, the Bradley Court made quite explicit its reasons for exposing judges to liability for acts done in the clear absence of jurisdiction: "Where there is clearly no jurisdiction ...any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible."83 The Court added that if a probate court were to try a criminal case, the judge would not be immune, the usurpation of authority "being necessarily known to [the] judge."84 The Court made no effort to explain why a clear violation of due process might not be as necessarily known to a judge as a mistake relating to subject matter jurisdiction. The utilization of the common law rules in Bradley was therefore an effort to identify those judicial mistakes that must have been knowingly made. The fact that the categories employed for this purpose were inadequate should not obscure the premise: there should be no immunity for errors that must have been knowing.
Thus, the rationale underlying the common law exception to judicial immunity can readily be accommodated to the modern standard of qualified immunity. Executives are not immune for acts that they knew or should have known violated clear constitutional standards.85 The common law held judges liable for a subclass of similarly unreasonable mistakes of law by labeling them in the "clear absence of jurisdiction." The appropriate task for the Court today is not a mechanical application of the categories used in Bradley to identify such mistakes, but a reasoned examination of the apparent inadequacy of those categories for achieving their purpose. The place of judicial immunity in the common law merely emphasizes the importance of a careful analysis of the judicial function to determine whether it has any special attributes incompatible with broader liability rules.
The major reasons given today for judicial immunity are: that judicial decisions are particularly difficult decisions, so that it would be especially unfair to expose a judge to liability for making precisely the kinds of hard judgments that it is his legal obligation to make;87 that judicial decisions must be made entirely independently of personal considerations, including the fear of personal liability;88 and that deterrence of illegal conduct, the major purpose of civil rights liability, is implicated less by judicial functions because judges are relatively unlikely, due to their training, traditions and the self-correcting characteristics of the adversary process, to act unconstitutionally.89 Buttressing each of these arguments is the claim that because judicial decisions necessarily involve matters that excite antagonism, and because lawsuits end with one party losing, the threat of numerous suits is great.90 Thus, even the possibility of liability only for unreasonable or knowing deprivations of constitutional rights would undermine the functions performed by judges.
Despite the real consternation that legal disputes cause judges, and despite the highly focused intellectual attention that their decisions receive in law schools, there is no obvious reason to believe that the decisions of judges are more difficult than those of many executive officers. The policeman on the street must "[decide questions] that may later divide an appellate court."91 The same can be said of governors who must decide whether to call out the militia, and of superintendents of mental hospitals who must decide whether to release a patient.92 Even a cursory view of the difficulty of executive decision-making supports Justice Rehnquist's suggestion that the special status of judicial immunity is based on the judiciary's special sensitivity to its own problems.93
In fact, it is probably far more realistic to expect a judge to avoid an unreasonable or knowing violation of constitutional rights than an executive officer. Civil rights liability standards for executives turn essentially on knowledge of the law.94 Executives are not necessarily trained to understand the law or to apply it to specific factual situations; as lawyers, judges have had precisely this training. Executives, despite their potential for liability, often do not have access to legal counsel before making their decisions; there simply are not enough lawyers in government to advise every executive on every decision that might involve liability.95 In contrast, judges can rely not only on their own legal knowledge, but almost always also have access to the knowledge offered by lawyers for the parties through briefs and oral arguments. Executives often must act on the basis of hurried and informal consultation with an agency lawyer, when a lawyer is available at all, and events often pressure immediate decisions. The great bulk of judicial work is notorious for postponement.96
Moreover, even if all executives had the training and the access to legal advice available to judges, the typical judicial decision would in many ways still be more compatible with the rationales for qualifying executive immunity. According to the traditional paradigm,97 a judicial decision directly involves just two interests, only one of which will prevail; the factual issues to be decided concern past events; the decision depends upon a reasoned application of largely pre-existing legal standards supplied by earlier courts or by statute; each case is self-contained in the sense that the facts, law and remedy for a case are isolated from the on-going activities of the parties and others; and the judge's responsibility is limited to passive receipt and consideration of the facts and arguments supplied by the parties. This description is, no doubt, inaccurate for much of modern public law litigation and is simplified even as to traditional litigation, but it is still a fair description for generally distinguishing the stereotypical judicial process from the executive process.
In the paradigm of the executive decision,98 one of two parties does not simply "win" or "lose". Especially with elected executives, decisions require the accommodation of many interests. The normal executive decision involves an array of possible outcomes because the problem is often to identify which of several methods should be used to satisfy the competing interests. Such decisions require predictive judgments as to how organizations can be controlled and how policies can be achieved: about the probable effects of different systems of deterrents and inducements, and of different methods of supervision, inspection and training.99 Thus, although restricted by notions of legal authority, the executive's attention must be directed at a number of nonlegal considerations as well. Moreover, an executive decision is not a discrete event but is a part of an on-going process. Responsibility for decision-making is delegated throughout an organization.100 Different aspects of a decision can be made sequentially - in a "stream of syntheses101 - and decisions in any single matter are complicated by their potential impact on matters unrelated to the immediate dispute at hand. Finally, the executive, while dependent on others for much of his information, actively shapes that information by structuring the administrative mechanisms that gather and evaluate information.102 Thus, the stereotypical descriptions of executive and judicial decisions indicate that executive decisions must accommodate a broader range of interests, require more complicated judgments, and are less guided.
It is extremely hazardous to evaluate an executive decision. Not only may the underlying explanation be difficult to assess because the decision is vague or complex, but also because the executive often must act in the absence of any preserved record. This is not to argue that executives should be immune for acts which they knew he should have known were unconstitutional. Rather, it is to suggest that if executives are subject to such liability, judges should a fortiori be subject to the same liability. To the extent that the stereotypes of the judicial and executive process no longer (or never did) conform to actual practices because the act of judging is more "executive" than mythology admits, the appropriate conclusion is merely that equivalent unfairness would attend qualified judicial immunity as now attends qualified executive immunity.
Independence, however, is thought to be centrally important to the judicial process. Concern with personal matters, including personal liability, is thought to be incompatible with impartial attention to the legal issues. This argument assumes that concern for personal liability does not encourage careful attention to the merits of the dispute. But precisely this assumption is rejected by the cases establishing qualified executive immunity.103 These cases reflect a belief that potential liability for unreasonable or knowingly unconstitutional acts will provide an effective incentive for officials to give greater attention to constitutional requirements.104 Exposure to liability has thus been designed precisely to encourage attention to legal issues. Since this concern is the central responsibility of a judge, the major assumption underlying qualified executive immunity indicates that imposition of limited liability on judges would be highly compatible with their function.
Effects other than attention to constitutional requirements, however, can be expected to follow from qualifying judicial immunity. The additional pressures created by exposure to liability have led to changes in executive decision-making that might be expected to affect judicial decisions as well. The increase in prisoners' rights lawsuits, for example, has greatly increased the prison administrator's reliance on the advice of his agency's attorney.105 Corrections officials now devote more attention to developing and revising explicit rules for their own operation.106 And, predictably, the "increased risk of being held individually liable... has made complete recordkeeping vital if the defenses of 'good-faith' or 'lack of knowledge' are to be successfully proven."107 Similarly, the potential liability of public school officials is said to be leading to increased reliance on documentation and elaborate, legalistic procedures.108 Exposure to liability can also be expected to encourage timid, noncontroversial decisions, since decisive actions, like expelling a student, seem fraught with uncertainties and risks.109
The noticeable characteristic of these side effects of qualifying executive immunity is their similarity to normal judicial methods. It is not surprising that those who are required to make judge-like decisions about the law resort to a judge's procedures.110 The judicial process has always been dominated by attorneys' argument and judgment; by careful attention to procedure intended to assure all parties that the decision will be fair and deliberative; by precise recordkeeping and written explanation that create at least apparent clarity as to the bases of any decision; and even by caution, for the tradition of adjudication - despite dramatic examples to the contrary - is of small changes elaborately justified and carefully chosen. This is not to suggest that all these characteristics are necessarily destructive of the executive function, nor to argue that they are all necessarily useful in the judicial function. Rather, the point is simply that even if such effects are beneficial, or at least worth their costs, they are more compatible with the normal judicial proceeding than with the normal executive action. If these effects did not justify shielding executive decisions with absolute immunity, they certainly are not sufficient to give this additional protection to judicial decisions.
The final major argument in support of absolute judicial immunity is that additional burdens on the judge are unnecessary or even dysfunctional because the judicial process contains safeguards providing adequate assurance that constitutional rights will not be knowingly violated. This argument undercuts the occasional suggestion that because adjudications involve hostile confrontations, a large number of lawsuits against judges could be expected. The judicial process, more than the executive, is surrounded by procedures, traditions and rituals designed to elicit acceptance of the court's decision.111 The opportunity to argue and cross-examine, the elaborate precision of the procedures, the courtesy and respect openly extended to judge and opposing counsel, the clothing, positioning and education of the judge, the use of juries, the reliance on precedent, the written record, the opinion written to justify the outcome, and the opportunity for appeal - all do at least as much to assure consent to the outcome as to assure constitutional conduct. These characteristics, as well as the improbability of unconstitutional conduct itself, reduce the likelihood of an excessive number of lawsuits against judges. The formality of the proceedings would also make it feasible to dismiss insubstantial claims before trial.
Even if there are already sufficient assurances that the judicial function will be exercised within constitutional limits, one of the purposes of civil rights liability is to compensate the victim.112 The fact that only a small number of abuses occur is no reason to deny compensation for those that do occur. Moreover, the use of procedural protections does not assure constitutional conduct when the claim is precisely that unconstitutional procedures have been used by a judge. Any right of appeal in Stump, for example, was an empty promise since the sterilized woman never knew she was the subject of litigation nor that she was to be sterilized.
The relative improbability of unconstitutional judicial conduct actually suggests that the deterrent function of qualified liability would be more effective when applied to judges than when applied to executives. As Professor Davis has argued, the potentially enormous number of legal abuses by some executives, especially the police, may be largely impervious to the threat of liability.113 The mere fact that only a fraction of the violations can possibly lead to lawsuits impedes the deterrent function. Since a larger proportion of the small number of judicial violations might lead to lawsuits, deterrence might be more effective. In addition, because deterrence of illegal executive conduct is diluted by indemnification, the operative deterrent is largely nonmonetary - the disgrace or embarrassment of a finding of illegal conduct, the interruption of regular activities due to the litigation and other career consequences.114 Many of these nonmonetary deterrents would be especially effective if applied to judges for the same reasons that violations are unlikely in the first place. Judges are likely to care about the high traditions of their office, to aspire to do an effective job, and to desire the respect of their colleagues. The education, training and acculturation of judges all point to the potential effectiveness of qualified liability as a deterrent. Finally, the effectiveness of potential liability as a deterrent to executive misconduct is reduced in many cases because the malfeasor does not alone have the capability of altering his conduct.115 The policeman on the street may lack the knowledge or time consistently to alter his search and seizure practices; the institutional administrator may be dependent on others for funding or the promulgation of necessary standards. Unconstitutional acts by judges, however, would much more likely be within their own power to prevent or correct. A judge is not dependent on others to see that a minor is represented, a hearing provided, or a clear constitutional standard understood and followed in his decision.
The generic attributes of the judicial function do not justify a broad rule of absolute immunity.116 In fact, if those attributes are compared to the characteristics of the executive function, liability for unreasonable or knowing violations of constitutional rights is considerably more appropriate for the improper exercise of the judicial function than for the executive. Nevertheless, the branch of government with the main capacity and responsibility for understanding and applying the law is held immune even for knowing failures to apply the fundamental law. Assessed by the kind of functional analysis insisted upon by the modern Court, this is not a paradox, but an absurdity or an evasion. The next section examines whether those reasons relied on by the older courts, but no longer openly acknowledged, reveal more about the underpinnings of judicial immunity.
