The Supreme Court might be finding its way to overturning ‘qualified immunity’


This month, the United States Supreme Court issued a remarkable opinion that could pave the way to repealing qualified immunity. That doctrine — which shields government workers from accountability when they violate the constitution — relies on the policy that government workers should rarely be subject to lawsuits for money damages. But in Tanzin v. Tanvir, a unanimous Supreme Court said that it is not its business to do policy. In addition, it held that damages are not only an appropriate remedy against government workers who violate the Constitution, but that “this exact remedy has coexisted with our constitutional system since the dawn of the Republic.”

The case involves a group of Muslim men who, following the dictates of their faith, refused to cooperate with the FBI and spy on their communities. In retaliation, FBI agents placed the men on the No Fly List, robbing them of the ability to travel to see family or for work. Muhammad Tanvir, for example, lost his job as a long-haul trucker because it required him to fly cross-country after finishing deliveries.

The Religious Freedom Restoration Act and ‘appropriate relief’

In the civil right lawsuits filed against the FBI agents, Tanvir and others asked for damages for violations of their religious rights. Luckily, there was just the statute to use in these circumstances. In 1993, Congress passed The Religious Freedom of Restoration Act (“RFRA”), which provided that individuals whose religious rights were violated by federal agents could sue to “obtain any appropriate relief against a government.”

In response, the government argued that “appropriate relief” does not include money damages. Although damages are the most common relief in lawsuits between regular people, the government argued that its employees should be treated differently. To convince the Court to adopt this special treatment, the government offered a plethora of policy arguments, all amounting to the idea that simply working for the government makes people impervious to damages suits.

Supreme Court on Nov. 2, 2020, in Washington, D.C.

In a unanimous opinion penned by Justice Thomas, the Court disagreed. And in doing so, it undermined one of the primary justifications supporting the doctrine of qualified immunity.

The Supreme Court created qualified immunity in 1982 to shield White House aides in the Nixon administration from a constitutional lawsuit.