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The Order of Battle

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A third aspect of Monday's decision in Scott v. Harris has not received too much notice. It involves a methodological issue, and the mere mention of methodology is generally sufficient to make eyes glaze over. But it's important.

When a case presents multiple issues, as most do, is the court required to decide them in any particular order? Sometimes.  In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court decided that in qualified immunity cases the court should decide first whether the plaintiff's allegations make out a constitutional violation and only afterward decide if that law was clearly established so as to hold the police officer or other official liable for damages. There is considerable grumbling on the Court about that rule.

Typically, the party asking the court for some kind of relief (plaintiff in a civil case, prosecution in a criminal case) must clear multiple hurdles before such relief can be ordered. If it is clear that the moving party cannot clear one hurdle, then the efficient way to proceed is to deny relief on that ground and not decide the other issues. Why waste resources deciding a difficult question when the outcome of the case is clear from an easy one?

The general rule is that no particular order of decision is required. A claim of ineffective assistance of counsel requires both deficient performance and resulting prejudice, but if there clearly is no prejudice a court need not decide whether counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 697 (1984). When an attorney comes up with a brilliant new argument for the first time on federal habeas corpus, that claim is typically both procedurally defaulted and barred by the retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Procedural default is usually addressed first, but if that question involves difficult or unresolved questions of state procedure while the Teague issue is obvious, the case can be disposed of on the latter question without addressing the former. In cases under the deference standard of 28 U.S.C. § 2254(d), a federal habeas court may decide that the state court decision is correct, which necessarily means that it is "reasonable." See, e.g. Weeks v. Angelone, 528 U.S. 225, 237 (2000).

There are exceptions, however. First and foremost is jurisdiction.  If the court has no jurisdiction of the case, then any decision it might render on any other question would be illegitimate, so the jurisdictional issue must be decided first, however difficult it may be. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998). A less strict rule holds that nonconstitutional questions should be decided before constitutional ones where the constitutional question can thereby be avoided. See, e.g., Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam); Ashwander v. TVA, 297 U.S. 288, 374 (1936) (Brandeis, J., concurring).

In Teague, the plurality stated that the question of whether a proposed rule would be "new" must be decided before the question of whether to make that rule. If the answer to the "new rule" question is "yes," the underlying question is not decided. See 489 U.S., at 316.  The reasons given include avoiding advisory opinions and the Ashwander rule. Justice Stevens was unconvinced, see id., at 318-319, but the status of Teague as a threshold inquiry before the underlying question was confirmed in Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

Although Teague's "threshold" requirement is unusual, it is generally consistent with both judicial efficiency and the Ashwander rule. Deciding that a rule has not yet been made is typically easier than deciding whether it should be made. As the Teague rule is a limitation on the remedy and not itself a constitutional requirement, decision on that basis is consistent with Ashwander.

The rule of Saucier v. Katz, however, is precisely the opposite of Teague. The question of whether a rule is "clearly established" for immunity purposes is much the same as whether it is "dictated by precedent" for Teague. Yet the Saucier rule requires that the more difficult constitutional question be tackled ahead of the typically easier remedial question.

Why the difference? The real reason seems to be a policy question of whether it is desirable to build the body of case law. In a state-prisoner federal habeas case, there has already been a court decision on the question in state court. A contrary decision in a lower federal court would create a conflict where none needs to be created. The Supreme Court can take the issue if it needs to by granting certiorari to the state court. If lower federal courts could establish a rule in one habeas case and apply it in subsequent habeas cases, this would allow lower federal courts to create precedents that are binding on state courts de facto, even though state courts have no legal obligation to follow them. See Arizonans for Official English v. Arizona, 520 U.S. 43, n. 11 (1997). (The AEDPA deference standard ameliorates this problem somewhat, and the "as determined by the Supreme Court" language was included in § 2254(d)(1) for precisely that reason, but it does not completely eliminate the problem.) In contrast, the typical § 1983 case involves a challenge to executive conduct that has not been the subject of a decision by any court. The Saucier Court appeared to be concerned that if cases where routinely thrown out on the ground that there was no "clearly established" law, there would be no way to establish that law.

In Brosseau v. Haugen, 543 U.S. 194 (2004) (per curiam), the Court brushed aside its own rule. It summarily decided the easy question ("The cases by no means 'clearly establish' that Brosseau's conduct [shooting Haugen] violated the Fourth Amendment") without deciding the more difficult question of whether there actually was a violation. Justice Breyer, joined by Justices Scalia and Ginsburg, called for a reexamination of Saucier. In Scott v. Harris (slip op. at 4 & n. 4), Justice Scalia's opinion for the Court notes the doubts about the rigid rule but says this order of proceeding happens to be the better way to go in this case.

Saucier's concern about a dearth of case law seems to be overblown. If a practice is widespread, the municipality can be found liable and has no immunity, see Leatherman v. Tarrant Co. Narcotics, 507 U.S. 163, 166 (1993), or an injunction can be sought by the ACLU et al. In the routine case, the shortest, cheapest route to decision is generally the best one. In § 1983 suits against police officers, that route is often to decide that the law is not "clearly established" that the conduct violated any right of the plaintiff.

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Roberts should be onboard to review Saucier, given his stated preference for judicial minimalism.

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