However, in 1871, with the case of Bradley v. Fisher,11 the Supreme Court, in another opinion written by Justice Field, abandoned the qualified immunity doctrine in favor of a doctrine of absolute judicial immunity: "[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly."12 After Bradley, judges were provided a defense in all actions brought by persons alleging malicious judicial conduct.
While Bradley was being argued, Congress enacted the Civil Rights Act of 187113 which created a federal remedy for civil rights violations perpetrated under color of state law. The Act imposed liability upon "every person" who, under color of state law, deprived another of his or her civil rights; it appeared to provide statutory authority for relief from judicial abuse. There is no convincing proof that Congress intended that immunity would be available to any state or territorial officials in actions under the Act, and it is more likely that the Forty-Second Congress intended to do away with whatever common-law immunities existed.14
Nevertheless, over the next hundred years, there was never a consistent recognition that the judicial immunity defense had been abrogated in section 1983 actions. The dominant line of cases found judges immune from suit on the basis of Bradley, even in civil rights cases.15 However, the exceptions to judicial immunity enunciated in Bradley were recognized in section 1983 actions also: (1) instances in which judges acted in clear absence of jurisdiction16 and (2) instances where judges engaged in nonjudicial activities.17 But a maverick line of cases held that judicial immunity was simply not a valid defense to suit brought under section 1983.18 Finally, in 1967, in Pierson v. Ray,19 the Supreme Court resolved the uncertainty regarding the applicability of the judicial immunity defense in actions under section 1983. There, Chief Justice Warren ruled that a state judge who had convicted civil rights demonstrators of disorderly conduct was immune from liability, noting that he had played no role in the arrest and conviction other than to adjudge petitioners guilty when their cases came before his court.20 The eight-member majority reaffirmed the applicability of the judicial immunity defense under the Civil Rights Act:
We do not believe that this settled principle of law was abolished by § 1983, which makes liable "every person" who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant 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, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.21Despite vigorous dissent concerning the legislative intent22 and history23 of the Act, the majority gave a broad construction to judicial immunity even in section 1983 cases. This same broad construction is reflected in the majority opinion of Stump v. Sparkman.
