May 26, 2020 8:25AM

SCOTUS Continues To Delay Qualified Immunity Cert Petitions

As I discussed last week, the Supreme Court was scheduled to consider ten different qualified immunity cert petitions at its May 21st conference, including three petitions calling for qualified immunity to be reconsidered entirely. Thursday came and went without further reschedulings, and I was expecting that we would learn about the results from this conference when the Court issued orders today. (I discussed these developments — and the problems with qualified immunity generally — with Jordan Rubin and Kimberly Robinson on this week’s “Cases and Controversies” podcast.)

But on Friday, the Court pushed back the question once again. In all ten of the remaining qualified immunity cases, the Court redistributed the petitions for the May 28th conference. Just as a procedural matter, this is somewhat unusual. It’s not uncommon for the Court to “relist” important petitions before deciding whether to grant or deny them, but “relist” decisions are generally announced in the Court’s set of orders following each of their conferences (i.e., the orders we were expecting next Tuesday). But here, the Court announced the redistribution of the petitions immediately, rather than waiting for Tuesday. I honestly have no idea what that indicates, and it’s also possible that things are just working differently now that the Justices are doing all their work remotely.

Nevertheless, the bottom line is that the waiting game continues. As of now, ten qualified immunity petitions are scheduled for consideration at the May 28th conference, which means that we would expect to learn about a possible cert grant on Monday, June 1st. Further delays are definitely possible at this point, but the Justices’ attention on this issue remains undeniable. Stay tuned!