The next big Supreme Court shift might not be abortion or guns

John C. Eastman
Mon, 16 Mar 2026 15:00:00 +0000
Opinion & analysis, Supreme court, Constitution, Rights, Weaponized justice, Law and order, Qualified immunity, Pierson v. ray, Smith v. scott, Zorn v. linton, Villarreal v. alaniz, Precedent, Police, Ninth circuit court of appeals, Fifth circuit

Qualified immunity, a doctrine the Supreme Court created in 1967, bewilders ordinary citizens who run headlong into it after government officials trample their constitutional rights. In plain English, the doctrine often blocks lawsuits against officials unless a prior court decision “clearly established” that the specific conduct at issue violated the Constitution. That standard leaves many victims without a remedy and lets many constitutional wrongs go unanswered.

That is not right. The Constitution exists to protect individual rights, not to insulate officials who violate them from accountability.

Qualified immunity can turn constitutional protections into paper rights — recognized in theory, unavailable in practice.

Recent years have also supplied fresh reasons to question the doctrine’s scope. Abuses tied to the weaponization of law enforcement and the criminal justice system have come to light with unsettling regularity. Think of Crossfire Hurricane, where senior officials used a discredited dossier — commissioned by Hillary Clinton’s campaign and funded through political channels — to pursue surveillance warrants and to monitor an opposing campaign before and after the 2016 election.

Or consider Arctic Frost, the childishly named operation (Arctic Frost is a type of orange, as in “Orange Man Bad”) that targeted hundreds of Americans, including one of the co-authors (Eastman) and relied on sweeping demands for private communications and records in search of a predicate offense in hopes of derailing President Trump’s 2024 campaign.

Episodes like these, and others, zero in on a basic question: When government power crosses constitutional lines, who answers for it?

Qualified immunity often supplies the answer: nobody.

Now the Supreme Court appears to be taking an unusual look at the doctrine — at least if its recent handling of three qualified immunity petitions offers any clue.

What’s different this time

In prior years, the court has frequently disposed of qualified immunity petitions quickly, sometimes through summary action with no explanation. This term looks different. Three cases involving qualified immunity have sat on the court’s docket far longer than the usual pattern would suggest. The justices have repeatedly requested responses and, in several instances, called for lower-court records. The court has also rescheduled cases for conference after conference without issuing a decision.

That process does not prove the court plans to revisit the doctrine. But it does suggest heightened attention.

Case 1: Smith v. Scott

The petition for writ of certiorari in Smith v. Scott was filed nearly a year ago. The case arises from a tragic encounter that began as a call for help. A 65-year-old man contacted police because he believed intruders lurked outside his apartment. Officers arrived, found no intruders, and then attempted to handcuff him. The encounter escalated. Officers restrained him on the ground, and an officer allegedly applied pressure that impeded his breathing until he died.

Both the district court and the Ninth Circuit denied qualified immunity. The officers then asked the Supreme Court to intervene. The respondent (Scott’s estate) initially waived a response, which commonly happens in cert-stage litigation. The court did not let the waiver stand. It called for a response after the case’s first conference last May. After a later conference, the court requested the record. Since then, it has repeatedly relisted the petition — an astounding 13 times — without resolving it.

Case 2: Zorn v. Linton

Zorn v. Linton involves a protest at the Vermont State House. Demonstrators occupied the chamber floor to protest government policy. Most left when the building closed. Shela Linton stayed and refused to leave. Officers removed her using a rear wristlock. She sued, alleging unreasonable force that caused pain, injury, and trauma.

The district court granted qualified immunity. The Second Circuit reversed and denied qualified immunity. The petition reached the Supreme Court in September. Once again, the respondent waived a response, and once again the court requested one. The case then cycled through conference after conference before the court requested the lower-court record on February 27.

This case matters for another reason. Many qualified immunity disputes involve fast-moving encounters where officers make split-second judgments. This one involves an interaction with warnings, time, and repeated opportunities to comply. It tees up an issue courts often sidestep: the obligations citizens assume when they knowingly violate a lawful order and force officers to escalate to removal. Does a protester’s refusal to leave reduce the scope of what counts as “unreasonable” force, so long as officers use measured escalation? Put differently: Were Linton’s rights even violated?

Case 3: Villarreal v. Alaniz

Villarreal v. Alaniz sits at the intersection of qualified immunity and the First Amendment. Police arrested journalist Priscilla Villarreal under a state statute that barred solicitation of nonpublic information. The reporter argued that the arrest violated her First Amendment rights.

The procedural history highlights the doctrine’s power. The district court granted qualified immunity. A Fifth Circuit panel denied it. The full Fifth Circuit later granted it en banc. The Supreme Court vacated and remanded the decision for further consideration. The Fifth Circuit again granted immunity.

Judge Andrew Oldham, in a concurring opinion, made an observation that cuts to the heart of qualified immunity’s justification. Courts often defend the doctrine by pointing to the realities of policing: officers must act quickly, sometimes under threat, with incomplete information. Oldham questioned whether that rationale “makes sense” in a case involving time to find a statute, plan an arrest, consult counsel, and investigate facts. Under those circumstances, why should immunity hinge on whether a prior case matches the fact pattern with near-photographic precision?

The cert petition was filed last July. The Supreme Court requested a response in August. It later requested the record after multiple conferences.

What the Supreme Court might do next

No outsider can know what the justices plan. But these three cases, taken together, give the Supreme Court a menu of options.

The court could reinforce qualified immunity, especially in excessive-force cases, and use the term’s docket to signal more protection for officers facing a rising tide of litigation.

The court could narrow qualified immunity — particularly in cases where officials have time to deliberate, plan, and consult — because the “split-second decision” rationale does not apply.

RELATED: The common-sense case for nationalizing US elections

Douglas Rissing via iStock/Getty Images

The court could also recalibrate the doctrine without overruling it: clarify what counts as “clearly established” law, tighten the inquiry, or distinguish between scenarios that demand rapid judgment and those that involve considered decisions.

In the abstract, “immunity from liability for violating rights” begins to resemble artificial judicial indemnification. Modern society does not grant that kind of blanket protection to most other professions. A surgeon, an engineer, or a corporate executive cannot avoid accountability because no prior case warned that the precise mistake at issue would cause harm. The law often holds them to general standards of care, not hyper-specific precedent.

Qualified immunity operates differently. It can turn constitutional protections into paper rights — recognized in theory, unavailable in practice.

Whatever the court’s destination, the road looks different this term. The extended consideration, repeated relists, and requests for records in multiple cases point to sustained attention. That alone marks a change.

If the court means to revisit qualified immunity, even in part, the consequences will ripple far beyond these three cases. Federal courts hear thousands of civil rights claims each year. The doctrine shapes whether citizens can vindicate constitutional rights at all.

At minimum, one conclusion now seems hard to avoid: The Supreme Court is looking closely. And when the court looks closely, doctrine can move significantly.