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Justice Antonin Scalia wrote a separate opinion in Burns where he concurred only with the court’s judgment. He also noted, almost in passing, that he was skeptical of Imbler’s reasoning. “[Imbler] relied for that holding upon a common law tradition of prosecutorial immunity that developed much later than 1871, and was not even a logical extrapolation from then-established immunities,” he wrote, referring to the year that Section 1983 became law. “While I would not, for the reasons stated above, employ that methodology here, the holding of Imbler remains on the books, and for reasons of stare decisis I would not abandon it.”

In the Sixth Circuit ruling against Miller, one of the panel’s members, Judge John Nalbandian, followed Scalia’s lead and parted ways with his colleagues on the immunity analysis. In footnotes, he pointed to recent scholarship that casts doubt on prevailing legal views about qualified immunity’s legitimacy on originalist grounds. But as a lower court judge, he had much less flexibility than a Supreme Court justice about when and how he can apply precedent.

For that reason, Nalbandian wrote, Craycraft was entitled to absolute immunity on the portions of his claims about advising a witness to destroy evidence. But he argued that absolute immunity did not apply to the allegations that Craycraft had violated a court order, as Miller had alleged. Prosecutorial immunity is grounded in the idea that it protects a prosecutor’s discretion, he wrote, but that discretion does not apply when it comes to a court order. Even then, he wrote, he would still hold that Craycraft was entitled to qualified immunity since the allegedly violated right was not “clearly established.”