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64 Va. L. Rev. 833 (1978)
Stump v. Sparkman: The Doctrine of Judicial Impunity

handle is hein.journals/valr64 and id is 843 raw text is: STUMP v. SPARKMAN: THE DOCTRINE OF
Irene Merker Rosenberg*
E VER since the Supreme Court's ruling in 1967 that* state
judges acting within their jurisdiction are absolutely immune
from suit for damages under section 1983,1 legal commentators have
persistently condemned this unqualified exemption.2 In Stump v.
Sparkman,3 the Court gave its response to these critiques by not
only reaffirming but also apparently expanding the immunity doc-
trine, thus facilitating the use of still another mechanism for federal
courts to avoid the merits of constitutional claims.4
* Associate Professor of Law, University of Houston. The author expresses her thanks to
Ms. Tobi A. Tabor of the University of Houston College of Law, class of 1979, for her invalu-
able research assistance in connection with this article.
Pierson v. Ray, 386 U.S. 547, 553-55 (1967). In Pierson, the Court held immune from suit
under 42 U.S.C. § 1983 (1976) a Mississippi justice of the peace who had found the plaintiff
clergymen attempting to integrate bus terminals guilty of a misdemeanor (breach of the
peace). The Court reasoned that the doctrine of judicial immunity was well established at
common law and that the legislative history of § 1983 contained no clear indication that
Congress intended to disturb such immunity. See 386 U.S. at 554-55. But see Note, Liability
of Judicial Officers Under Section 1983, 79 YALE L.J. 322, 324-29 (1969).
When the Supreme Court first addressed the issue of judicial immunity in Randall v.
Brigham, 74 U.S. (7 Wall.) 523 (1868), it proceeded more tentatively. In that case, the Court
held that a lawyer who had been disbarred by a judge of a court of general jurisdiction for
grossly unethical conduct could not sue that judge civilly notwithstanding alleged errors in
the disbarment proceeding. The Court added in dictum, however, that where judges of courts
of general jurisdiction acted in excess of their jurisdiction, they might be held liable if such
acts were found to have been done maliciously or corruptly. See id. at 537. Only four years
later, the Court specifically rejected this limitation on judicial immunity in deciding that the
doctrine protected a judge of a court of general criminal jurisdiction who had prohibited the
plaintiff attorney from practicing in his court on the ground that the lawyer had allegedly
threatened the judge. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872).
Although absolutely barring damage actions, the doctrine of immunity does not preclude
suits under § 1983 for declaratory or injunctve relief against state court judges, see Mitchum
v. Foster, 407 U.S. 225 (1972), or criminal prosecutions under the federal civil rights laws,
see Imbler v. Pachtman, 424 U.S. 409, 428-29 (1976); O'Shea v. Littleton, 414 U.S. 488, 503
2 See, e.g., Kates, Immunity of State Judges Under the Federal Civil Rights Acts: Pierson
v. Ray Reconsidered, 65 Nw. U.L. REv. 615 (1970); Kattan, Knocking on Wood: Some
Thoughts on the Immunities of State Officials to Civil Rights Damage Actions, 30 VAND. L.
REV. 941 (1977); Note, Immunity of Federal and State Judges From Civil Suit-Time for a
Qualified Immunity?, 27 CAsE W. REs. L. Rav. 727 (1977); Note, supra note 1.
3 435 U.S. 349 (1978). Stump was a five-to-three decision. Justice White wrote the majority
opinion; Justice Stewart wrote the main dissenting opinion, id. at 364, joined by Justices
Marshall and Powell, with the latter also writing a brief, separate dissent, id. at 369. Justice
Brennan did not participate in the decision.
See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977) (procedural default in state court with

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