280
Scalia, J., concurring
immune from suit under § 1983, since "the presumed legislative intent not to eliminate traditional immunities is our only justification for limiting the categorical language of the statute." Burns v. Reed, 500 U. S. 478, 498 (1991) (Scalia, J., concurring in judgment in part and dissenting in part); accord, ante, at 267-269. The policy reasons for extending protection to such conduct may seem persuasive, see post, at 283-286 (Kennedy, J., concurring in part and dissenting in part), but we simply "do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy," Tower v. Glover, 467 U. S. 914, 922-923 (1984). This is therefore an easy case, in my view, and I have no difficulty joining the Court's judgment.
I join the Court's opinion as well, though I have some reservation about the historical authenticity of the "principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity," ante, at 273. By the early years of this century, there was some authority for the proposition that the traditional defamation immunity extends to "act[s] incidental to the proper initiation" or pursuit of a judicial proceeding, such as "[s]tatements made by counsel to proposed witnesses," Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. L. Rev. 463, 489, and n. 82 (1909). See, e. g., G. Bower, Actionable Defamation 103-105, and n. h (1908); Youmans v. Smith, 153 N. Y. 214, 47 N. E. 265 (1897). I have not found any previous expression of such a principle, but accede to the Court's judgment that it existed several decades earlier, when § 1983 was enacted, at least in the sense that it could be logically derived from then-existing decisions, cf. Burns, supra, at 505 (Scalia, J., concurring in judgment in part and dissenting in part). In future cases, I trust the Court (aided by briefing on the point) will look to history to determine more precisely the outlines of this principle. It is certainly
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