The current Supreme Court term is over, but it went out with a bang. Supreme Court Justice Clarence Thomas wrote a stinging rebuke of qualified immunity, the court-created doctrine that has allowed so many bad actors in government and law enforcement to escape punishment for obvious constitutional rights violations.

In a dissent to a court decision declining to take the case of an Arkansas State college student who alleged school administrators violated her First Amendment rights — and the administrators were given qualified immunity — Thomas wrote:  “[a]s I have noted before, our qualified immunity jurisprudence stands on shaky ground.”

Petitioner alleges that university officials violated her First Amendment rights by prohibiting her from placing a small table on campus near the student union building to promote a student organization. According to the university, petitioner could engage with students only in a designated “Free Expression Area”—the use of which required prior permission from the school. The Eighth Circuit concluded that this policy of restricting speech around the student union was unconstitutional as applied to petitioner. Turning Point USA at Ark. State Univ. v. Rhodes, 973 F. 3d 868, 879 (2020). Yet it granted immunity to the officials after determining that their actions, though unlawful, had not transgressed “ ‘clearly established’ ” precedent. Id., at 881.

But why should university officers, who have time to make calculated choices about enacting or enforcing uncon- stitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question.

Thomas believes the blanket use of qualified immunity for officials of all types doesn’t make any sense, and is legally suspect. He urges that the court take a good case on the issue soon so the court can “reconsider either our one-size-fits-all test or the judicial doctrine of qualified immunity more generally.”