When the court clings to half-measures

Civil Rights and Wrongs is a recurring series by Daniel Harawa covering criminal justice and civil rights cases before the court.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Before beginning its summer recess, the Supreme Court issued a decision in the case of Goldey v. Fields. Andrew Fields, a federal prisoner in Virginia, had alleged that Federal Bureau of Prisons officers repeatedly abused him while taking him to, and while he was held in, a special housing unit colloquially known as “the hole.” Fields tried to use the prison grievance system, but the officers refused to provide Fields with the necessary forms. Left with no other option, Fields turned to the courts.

The United States Court of Appeals for the 4th Circuit held that Fields’ Eighth Amendment excessive-force claim could proceed under Bivens v. Six Unknown Named Agents, a 1971 case that allowed one to bring legal action against federal officials who violate one’s constitutional rights. But in a short unsigned opinion, the Supreme Court summarily – that is, without full briefing on the merits or oral argument – reversed.

The outcome in Goldey was perhaps unsurprising – the decision came just three years after Egbert v. Boule, in which the court made its hostility to Bivens unmistakable. In Egbert, the court reiterated that recognizing a damages remedy against federal officers is  “a disfavored judicial activity,” and reminded lower courts that, when it came to such cases, its “watchword is caution.”

Many (including Justice Neil Gorsuch in his concurrence) read Egbert as sounding the death knell for Bivens. Yet tellingly, the Egbert court did not overrule Bivens. To the contrary, the justices expressly left intact the two-step framework for deciding whether a new Bivens action can proceed. First, a court must determine whether the action is meaningfully different from the court’s other Bivens cases. If so, a court must next decide “whether special factors counsel hesitation in recognizing a Bivens remedy in a new context.” As the court explained in Egbert, this two-step inquiry often boils down to a single question: “whether there is any reason to think that Congress might be better equipped to create a damages remedy” than courts against federal officers.

The reality is that while Congress may be better equipped to create a damages remedy, Congress has little incentive to do so. The practical justification for Bivens has always been straightforward. Congress enacted 42 U.S.C. § 1983 to allow damages suits against state officials who violate the Constitution. Yet no parallel statute exists for federal officials. The reason is obvious: the federal government has every incentive to resist creating damages actions against itself. (To be sure, Congress has passed laws that have created federal liability, such as the Federal Tort Claims Act. However, liability under the existing avenues is limited, and they are no substitute for a constitutional damages action.)

In Bivens, the court implicitly acknowledged this reality and intervened to prevent a regime where state officials could be held accountable for constitutional violations, but federal officials could not. As the Bivens court reasoned, quoting Marbury v. Madison: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” As Chief Justice John Marshall said in Marbury: “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

The court twice extended Bivens over the ensuing decade in an attempt to give life to the Marbury vision of rights. In the 1979 case of Davis v. Passman, the court allowed a former congressional staffer to sue for damages under the Fifth Amendment after she alleged that she was fired because of her sex. Then, in the 1980 case of Carlson v. Green, the court allowed an Eighth Amendment damages action to proceed in a case alleging that, among other things, federal prison officials were deliberately indifferent to a prisoner’s serious medical needs. Since then, the court has refused to extend Bivens any further. As the court recounted in Goldey: “After 1980, we have declined more than 10 times to extend Bivens to cover other constitutional violations.” Reading tea leaves, the court’s summary reversal in Goldey seems to portend that it will never again recognize a new Bivens action.

The court may think it is exercising restraint by refusing to overrule Bivens. But this refusal has consequences. By keeping Bivens nominally intact while making a damages remedy practically unavailable, the court’s case law risks creating a pacification effect. The public can believe that constitutional rights against federal officials still have teeth, and Congress will not feel any urgency to act. As a result, the court’s failure to expressly overrule Bivens dulls the urgency for legislative reform, misleads victims into pursuing futile claims, and lets the court appear cautious while it simultaneously strips constitutional rights of any real force. Refusing to overrule Bivens is not even efficient, as plaintiffs will still file constitutional claims, and lower courts will still have to dutifully conduct the two-step inquiry when the outcome is largely predetermined.

There is, of course, a more honest path available. If the justices believe it is beyond the judicial role to recognize damages remedies, they should overrule Bivens outright. A decision overruling Bivens could in turn galvanize the public to demand that Congress pass legislation that creates a federal equivalent to § 1983, which is sorely needed at a time when federal officials are exercising unprecedented power and are potentially engaged in egregious constitutional abuses. In other words, a decision overruling Bivens could prompt Congress, or prompt “We the People,” to push Congress to do its job. And while the current Congress is unlikely to act, momentum could still build to push a future Congress to do so. Indeed, perhaps the only cure for congressional inertia is a groundswell of public demand.

Yet so far, the court has clung to half-measures. It preserves Bivens on paper, guts it in practice, and refuses to own the consequences. That approach does not respect Congress, and in fact may stifle legislative action. It does not respect the citizenry as it leaves them without enforceable rights. And it does not even respect the court’s claimed view of the Constitution. The Supreme Court should have the courage to say what it means. Either stand by Bivens or admit that the project is over.