The Locus of the Law: Loper-Bright and Qualified Immunity

Richard Primus

I find myself thinking about a potential tension between two impulses in the jurisprudence of the Roberts Court.  Roughly, it's a tension between judicial behavior as law-finding and as law-making.  

The first is reflected in cases like Loper Bright, where the Court asserts that statutory language has inherently correct interpretations.  Rather than seeing statutory language as (often, if not always) a repository of several potential meanings, the choice among which can be made through adjudication (or, in appropriate cases, where different institutions can apply different meanings), this impulse regards the enacted statutory language as the locus of the law and as having directly accessible meaning, rather than needing judicial (or other authoritative-interpreter) intervention to have definite content.  One can be mistaken about that content, and courts have the privileged position they have partly because they are supposed to be good at ascertaining the content correctly.  But ascertainment is what the courts are doing.  Presumably, other people who are good at interpreting could do it, too, just without authority.

The other impulse is reflected in domains like qualified immunity, where a proposition of law is not deemed operative unless it has been established not just by enacted language (in, say, a statute or a constitution) but by prior judicial decision.  As if there might be more than one interpretation of the law's force, and liability should not attach until the meaning has been settled.  

One can reconcile the two lines of doctrine, of course.  One can say, e.g., that what courts are doing in the second context is not adjudicating among possible meanings of the law; it's law-finding at a level of sophistication that shouldn't be expected from people who aren't judges, and its function is to clarify and explain rather than to settle.  But perhaps in part because of the tone of certainty with which some judicial opinions (e.g., that of the Supreme Court majority in Loper Bright) assert that statutes have uniquely correct interpretations, I'm still inclined to think that there's a tension here, at least at the level of attitude.