Few Supreme Court decisions have been as completely unsurprising as Pearson v. Callahan. Pearson overruled Saucier v. Katz, which required courts to reach the merits of constitutional tort claims before addressing qualified immunity. Pearson held that merits-first adjudication, while often appropriate, “should no longer be regarded as mandatory.”

The specific question in Pearson – whether the merits of constitutional tort claims should be adjudicated, even when they do not control immediate outcomes, in order to achieve “clearly established” rights capable of enforcement in the future – is important and interesting. This comment argues that there is more to be said for the merits-first order of battle and for a systemic approach to constitutional enforcement than the Court’s opinion in Pearson suggests. More broadly, the comment argues correct resolution of the issue in Pearson requires differentiation among rights. For some rights, money damages are relatively unimportant. When rights are defined and enforced in other venues, the costs of foreclosing merits-first adjudication in constitutional tort actions will be low. For other rights, money damages are crucial important. When that is true, refusal to reach the merits of constitutional tort claims will cut to the bone.

Going directly to qualified immunity will not only inhibit the development of constitutional doctrine, but also will degrade existing rights to a least-common-denominator understanding of their meaning. Despite the Court’s reluctance to particularize remedial doctrine, effective enforcement of constitutional rights demands it. Pearson v. Callahan shows the need for reconceptualization of the law of constitutional torts to allow for differentiation among rights.

John C. Jeffries Jr., Reversing the Order of Battle in Constitutional Torts, 2009 Supreme Court Review 115–137 (2009).