Crawford-El v. Britton, 523 U.S. 574, 38 (1998)

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Cite as: 523 U. S. 574 (1998)

Scalia, J., dissenting

Justice Scalia, with whom Justice Thomas joins, dissenting.

As I have observed earlier, our treatment of qualified immunity under 42 U. S. C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted, and that the statute presumably intended to subsume. See Burns v. Reed, 500 U. S. 478, 498, n. 1 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). That is perhaps just as well. The § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U. S. 167 (1961), which converted an 1871 statute covering constitutional violations committed "under color of any statute, ordinance, regulation, custom, or usage of any State," Rev. Stat. § 1979, 42 U. S. C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law. See Monroe, 365 U. S., at 183; id., at 224-225 (Frankfurter, J., dissenting). As described in detail by the concurring opinion of Judge Silberman in this case, see 93 F. 3d 813, 829 (CADC 1996), Monroe changed a statute that had generated only 21 cases in the first 50 years of its existence into one that pours into the federal courts tens of thousands of suits each year, and engages this Court in a losing struggle to prevent the Constitution from degenerating into a general tort law. (The present suit, involving the constitutional violation of mis-directing a package, is a good enough example.) Applying normal common-law rules to the statute that Monroe created would carry us further and further from what any sane Congress could have enacted.

We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified

611

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