Abstract

In a string of cases beginning with Siegert v. Gilley, 500 U.S. 226 (1991) and culminating in Saucier v. Katz, 533 U.S. 194 (2001) the Supreme Court has consistently mandated a particular order-of-decisionmaking in suits brought under 42 U.S.C. § 1983. In these cases the Court has required federal courts considering constitutional tort claims against public officials to review the merits of those claims before considering the proffered defense of qualified immunity.This once-obscure aspect of the Supreme Court's civil rights jurisprudence has become a bone of considerable contention in recent years. In two separate decisions last term Justice Breyer criticized Saucier's merits-first order-of-decisionmaking. For example, in Scott v. Harris, 127 U.S. 1769 (2007) he argued that the fact-dependency of qualified immunity cases supports the argument that we should overrule the requirement, announced in Saucier v. Katz, that lower courts must first decide the 'constitutional question' before they turn to the 'qualified immunity question.' Justice Breyer is not alone in his distaste for Saucier's merits-first order-of-decisionmaking; he pointed to criticism of the rule that had been leveled by a number of his brethren and by commentators. The Court now seems likely to reconsider Saucier in the near future.In this article I address the constitutional challenge to Saucier's merits-first order-of-decisionmaking. My analysis of this criticism leads me to suggest a slight but important modification in the Supreme Court's order-of-decisionmaking jurisprudence, a change that should assuage those, like Justice Breyer, who are concerned about inefficiencies brought about by Saucier's ordinal mandate. I demonstrate that deciding the merits of a case in which a remedy is unavailable violates Article III's ban on advisory opinions only where it is apparent from the outset that no remedy will be available to the plaintiff. In the run-of-the-mill case, where the unavailability of a remedy does not become apparent until the merits of the case have been closely examined, the Constitution simply does not require remedy-first adjudication.