In December 2020, the United States Supreme Court issued its most important decision on qualified immunity since Harlow v. Fitzgerald, and the issue in the case did not even involve the doctrine. In the Court’s unanimous opinion in Tanzin v. Tanvir, which dealt with the interpretation of the Religious Freedom Restoration Act, Justice Thomas explicitly distanced the Court from the very type of policy reasoning used to create qualified immunity. He also embraced the availability of damages claims against government officials as historically justified and often necessary to vindicate individual rights and to check the government’s power. The Court’s decision in Tanvir—alongside those in Taylor v. Riojas and McCoy v. Alamu—offers the strongest signal in decades that the Court is ready to recalibrate its qualified immunity jurisprudence. While it is not time to celebrate the demise of qualified immunity just yet, this Article will discuss how the Court’s disposition of those cases reveals the Court is reconsidering both the foundations and applications of qualified immunity.
