In the case of Harlow et al. v. Fitzgerald, 1981, the U.S Supreme Court held that government officials cannot be held liable for civil damages in relation to their official duties unless they violated "clearly established statutory or constitutional rights" which a reasonable person would have known about. The case arose when A. Ernest Fitzgerald, an analyst with the Department of Defense (DoD), claimed he was fired after testifying before Congress about cost overruns on a military aircraft project and sued Nixon aides Bryce Harlow and Alexander Butterfield for conspiring to violate his First Amendment rights by causing his dismissal from employment at DoD as retaliation for his testimony. The court ruled in favor of Harlow and Butterfield stating that presidential aides should share absolute immunity with their employers because they need this protection to carry out their jobs effectively without fear of being sued.

In the dissenting opinion for Harlow et al. v. Fitzgerald, Justice Brennan argued that the majority's decision to grant absolute immunity to presidential aides was a departure from established precedent and undermined constitutional protections against unlawful conduct by government officials. He contended that such broad immunity could potentially shield officials who knowingly violate citizens' constitutional rights, thereby undermining accountability in public service. Furthermore, he disagreed with the majority's assertion that litigation would distract officials from their duties or inhibit discretionary action; instead, he believed it served as an important check on potential abuses of power. In his view, qualified rather than absolute immunity struck a better balance between protecting official discretion and upholding individual rights.