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Freezing Bivens In Place

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Can and should the federal courts invent new kinds of lawsuits, creating causes of action that Congress has not authorized?  The U.S. Supreme Court's thinking on that question has evolved over the years, and it took another step today.

Courts have been creating causes of action for a very long time.  The English courts did so before there even was a Parliament as we now know it, and these are the "common law" causes of action we learned in the first year of law school.  They created common law crimes as well.

But courts do this less than they used to, and the federal courts do less than the state courts.  Many states no longer have common law crimes; the federal courts have never been thought to have the power to create them.

During Reconstruction, Congress created a cause of action for people whose constitutional rights are violated by state and local officials, but not by federal officials.  In 1971, the Supreme Court created such a cause of action under the banner of "for every wrong there is a remedy."  That was the Bivens case, involving an alleged Fourth Amendment violation by federal agents.  In the next few years, the Court expanded Bivens a couple of times to new areas, but then it stopped.

The present Supreme Court term has two cases presenting the questions of what it means to extend Bivens to a new area and whether to do so.  One of those cases was decided today by a short-handed six-Justice Supreme Court.  If the approach of the four-Justice majority is reaffirmed in the next case, then Bivens is effectively frozen in ice.  It will exist within its current scope, but it will not be extended, and nearly any variation on existing themes will be considered an extension.
Today's case is Ziglar v. Abbasi, No. 15-1538.  Aliens who were detained after 9/11 claim that they were subjected to harsh conditions and intentional abuse.  They filed suits for money damages against several high government officials for establishing the policies under which they were detained.  Former Attorney General John Ashcroft was among the defendants.  They also sued the wardens of the detention facilities for abusive practices.

The Supreme Court has extended Bivens to confinement conditions before, but this case is arguably different in that it has national security implications, high officials are being sued for policy decisions, and the cause of action comes under the Fifth Amendment rather than the Eighth.  Are these differences sufficient to make this an extension of Bivens?

The majority takes a broad view of what is an extension and therefore a narrow view of the existing scope of Bivens.  "Yet even a modest extension is still an extension."  This is consistent with the Court's treatment of the questions of what is a "new rule" for the purpose of retroactivity under Teague v. Lane and what is "clearly established" for the purposes of qualified immunity in civil rights suit and deference to state court decisions in federal habeas corpus. 

Because this case is so old, it was in the Second Circuit while Justice Sotomayor was there, and Justice Kagan was involved during her time at the Justice Department.  The case was argued before Justice Gorsuch joined the Court.  As a result, it was argued to and decided by a six-Justice court, a highly unusual circumstance.

Justice Kennedy's opinion is joined by three others.  Four is a majority of the short-handed Court and therefore it is the Opinion of the Court as a precedent.  But of course five is not majority of the full Court.  What happens to this Bivens freeze when the Court is back to full strength?

We may not have long to wait.  Hern├índez v. Mesa, No. 15-118 remains pending.  This is the cross-border shooting by the Border Patrol Officer.  If the Court will not extend Bivens for even a "modest extension," it seems to me that Agent Mesa wins.  For the plaintiffs to win, they would have to get all three of the Justices not participating in Ziglar to reject a brand-new precedent.  That strikes me as highly unlikely.

3 Comments

Food for thought: as the state gets bigger and bigger and more powerful, Bivens could have been a bulwark against abuse. I am not saying that Bivens should be expanded, but people like Lois Lerner abused the rights of Americans, and they just have to suck lemons.

An important point, to be sure. As I read today's decision, the Supreme Court's answer is: "Write your Congressman."

Don't disagree--but, of course, Congress tends to be solicitous of those who work for the federal government, so the democratic process may fail.

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