Willingham v. Morgan/Concurrence Black

Mr. Justice BLACK, concurring.

I concur in the judgment of the Court and in the opinion except for one portion which is quoted below in answer to the Government's contention:

'It argues that the removal statute is an incident of federal     supremacy, and that one of its purposes was to provide a      federal forum for cases where federal officials must raise      defenses arising from their official duties. On this view,     the test for removal should be broader, not narrower, than      the test for official immunity. We agree.'

I see no necessity in this case for comparing the breadth of the law authorizing removal of cases from state to federal courts with the test 'for official immunity.' This case raises no question about official immunity from lawsuits for conduct of a government employee. Moreover, the difference between the breadth of a right to remove and a right to claim immunity is purely conceptual and cannot be measured by any means that I know about.

I would therefore eliminate the abovequoted statement from the Court's opinion.