Abstract

In recent years, the Supreme Court's 2001 decision in Saucier v. Katz has come under increasing criticism. Critics-including academics, litigants, judges, and Supreme Court justices - have offered four principal criticisms. First, they argue that Saucier's ordering requirement often results in advisory opinions that follow insufficient argument and that result in bad constitutional rulings. Second, they contend that the decision unnecessarily exacerbates already-existing concerns of judicial economy. Third, they assert that the decision frequently results in unreviewable decisions of constitutional law. Finally, they argue that because litigants have other ways of seeking to vindicate their constitutional rights, Saucier's ordering requirement is unnecessary. This Article responds to these criticisms in two ways. First, it places Saucier in its historical and doctrinal context. Historically, the Supreme Court has regularly reached constitutional questions the resolution of which were unnecessary to the outcome of the case. Doctrinally, the Supreme Court has often allowed, if not required, the resolution of unnecessary constitutional questions. Second, this Article responds seriatim to these criticisms and argues that none of them justify departing from Saucier's ordering rule. With each of the four criticisms rebutted or undermined, the original justification for Saucier still stands - the ordering requirement is necessary to ensure the continued evolution and clarification of constitutional law. The Article concludes by asserting that the Supreme Court should reaffirm Saucier when it revisits the issue next term.