Nahmod Law

A Section 1983 Primer (9): Absolute Judicial Immunity

In the seventh in my Section 1983 Primer series, published on October 25, 2012, I blogged about the Supreme Court‘s approach to absolute immunity. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations as well as the Court’s functional approach.

In the eighth in this series, published on February 20, 2013, I blogged about absolute legislative immunity.

I discuss absolute judicial immunity in this post.

Pierson v. Ray, 386 U.S. 537 (1967): The Seminal Judicial Immunity Decision

The Supreme Court held in Pierson v. Ray that judges are protected by absolute immunity when they act in a judicial capacity, even if they act unconstitutionally. The Court relied on the background of common law immunity in 1871, when section 1983 was enacted. In Pierson itself, a state court judge was ruled absolutely immune from damages liability under section 1983 even though he had convicted the plaintiff under an unconstitutional statute. For immunity purposes, it did not matter even if the judge did so knowingly.

Purposes of Absolute Judicial Immunity

Absolute judicial immunity is intended to protect the judicial process and not the judges themselves. If judges, who are easy targets, had to be concerned that rulings in civil or criminal cases would generate section 1983 claims against them–after all, someone almost always loses–this could have an adverse effect on their independent decision-making. In addition, section 1983 claims against judges would necessarily involve the relitigation of earlier cases. Further, there is ordinarily a remedy available: an appeal.

The Relevance of Subject Matter Jurisdiction

However, for absolute immunity to apply, the judge must not have acted in the complete absence of all subject matter jurisdiction. If, for example, a probate court judge without any subject matter jurisdiction whatever over criminal cases were to convict a person of a crime unconstitutionally, that judge would not be protected by absolute immunity.

On the other hand, if the existence of subject matter jurisdiction is merely debatable, absolute immunity would still apply, as made clear by the Court in Stump v. Sparkman, 435 U.S. 349 (1978).

The Judicial Act Requirement

Another requirement for absolute judicial immunity is a judicial act. Stump involved the sterilization of the plaintiff when she was a minor at the request of her mother who had secured a court order from the defendant judge. The plaintiff did not know that she was being sterilized, but only found out some years later. Still, the Court determined that the challenged conduct of the judge was a judicial act protected by absolute judicial immunity: it was the kind of act normally performed by a judge, and the parties before the court (here, only the mother) dealt with the judge in his judicial capacity.

Who Is Protected

Judges at all levels are protected by absolute judicial immunity, ranging from magistrates and justices of the peace all the way up to a state’s highest appellate judges.


1. The scope of judicial immunity from section 1983 damages liability is very broad. Indeed, the concern with protecting the integrity of the judicial process is so weighty that absolute immunity even extends to witnesses who allegedly testify falsely in civil and criminal proceedings. Briscoe v. LaHue, 460 U.S. 325 (1983).

2. The functional approach to immunities applies to absolute judicial immunity. A judge who acts unconstitutionally in a non-judicial role, for example, as an administrator who fires someone, is not protected by absolute immunity for that act. Forrester v. White, 484 U.S. 219 (1988).

3. What I address here is absolute judicial immunity from damages liability. Whether and to what extent judges are absolutely immune from injunctive relief is governed by The Federal Courts Improvement Act of 1996 (PDF), Pub. L. No. 104-317. That Act in part overruled Pulliam v. Allen, 466 U.S. 522 (1984), which held that judges were not absolutely immune from injunctive relief regarding their judicial acts. See §§ 7:64-65 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(West), now available as an ebook.

Next in the Series: Absolute Prosecutorial Immunity

Written by snahmod

March 14, 2013 at 11:02 am

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