As a historical matter, the doctrine of judicial immunity arose in response to the creation of the right of appeal. In the tenth and eleventh centuries in England, when no right of appeal existed, losing litigants could challenge unfavorable judgments on the ground that they were false.19 The litigant was entitled to both the nullification of a false judgment and a fine (known as an amercement) against the judge who had rendered it.20 As the right to appeal became available, it replaced amercements against judges, and gradually the doctrine of judicial immunity developed.21 In modern times, however, it has become questionable whether the availability of appeal is in all instances an adequate substitute for imposing liability on judges for their wrongful acts. Although a judge's act may eventually be reversed on appeal, the victim of the judge's behavior may have suffered damage in the interim for which appeal may not compensate. Indeed, irreversible and serious damage may have occurred, which is not correctable by appeal.
Nevertheless, once appeal became available, judicial immunity was gradually accepted under the common law. In the seminal case of Floyd v. Barker,22 decided by Lord Coke in 1607, judicial immunity was established for judges who served on English courts of record. In that decision, Lord Coke discussed for the first time what are now considered some of the modern policies that underlie the doctrine of judicial immunity. Judicial immunity serves the following purposes according to Lord Coke:
(2) it protects judicial independence;
(3) it avoids continual attacks upon judges who may be sincere in their conduct; and
(4) it protects the system of justice from falling into disrepute.23
Today it is generally recognized that the most important purpose of judicial immunity is to protect judicial independence.24 As the Supreme Court has said, judicial immunity is needed because judges, who often are called upon to decide controversial, difficult, and emotion-laden cases, should not have to fear that disgruntled litigants will hound them with litigation charging improper judicial behavior.25 To impose this burden on judges would constitute a real threat to judicial independence. The question that remains, however, is whether absolute, as distinguished from qualified, immunity is necessary to protect judicial independence. Absolute immunity is strong medicine, justified only by a grave threat to the effective administration of justice.26 As Justice Douglas suggested in his dissenting opinion in Pierson v. Ray,27 perhaps immunity should not extend to all judges, under all circumstances, no matter how outrageous their conduct.28
The grant of absolute immunity to judges has often been criticized, especially because it is judges who have granted absolute immunity to themselves.29 Referring to the rule of absolute immunity for judges, an esteemed commentator once remarked that a "cynic might be forgiven for pointing out just who made this rule."30 Moreover, the rule has been applied in some infamous cases in which judges have engaged in egregious behavior. Stump v. Sparkman,31 a 1978 Supreme Court decision, was such a case. This case involved a state court order authorizing the sterilization of a fifteen-year-old girl on the petition of her mother. The mother's petition stated that the girl was somewhat retarded and had begun dating men, making sterilization necessary to prevent pregnancy. However, the girl's high school record indicated that in all probability she was not retarded.32 The state court judge who granted the petition ordering sterilization of the girl did not hold a hearing, appoint counsel or a guardian ad litem for the girl, or notify her of the petition or subsequent order.33 Despite these flagrant violations of due process of law, the Supreme Court ruled that the state court judge possessed absolute immunity for his acts and could not be held liable for any harm they caused. Tremendous criticism has since been directed at the Supreme Court's decision in Stump,34 but absolute immunity for judges remains the rule.
