An unusual cert.-stage amicus brief helps to drive home how difficult the Supreme Court has made it to obtain damages for constitutional violations by federal officers—and why that's a *big* problem.
To be fair (and I say this as someone who agrees with Prof. Vladeck's basic point about the necessity of Bivens), the real doctrinal reason the Court is retrenching on Bivens probably has less to do with Erie generally and more to do with implied rights of action specifically. Bivens was decided when the Court had a policy of liberally interpreting STATUTES to allow lawsuits even if they didn't say so. The most notable example of this is JI Case v. Borak, which allowed securities suits even though the securities statutes didn't provide for a cause of action. The Warren Court felt that if policy arguments supported "implying" a cause of action not provided for in a statute, it was worth doing so.
Conservatives DID NOT like this. The intellectual leader on this was actually one of the more moderate conservatives, Justice Powell. But he dissented in Cannon v. University of Chicago, in 1979, and said this whole business of implying causes of action into statutes was hogwash. Congress gets to decide if there's a cause of action, and if Congress says there isn't one, the Court's job is to obey Congress' wishes.
At the time, Powell's dissent was a solo dissent, but it was massively influential. And by the time Scalia had joined the Court in the late 1980's, the conservatives had picked up on Powell's position and ever since then, although old implied rights of action such as the Borak case were grandfathered in, the Court has adopted Powell's view and is not implying any new causes of action.
Accordingly, whither Bivens? Bivens, to someone who agrees with Powell, is an abomination. At least when you imply a STATUTORY cause of action, Congress can come back and say "you're wrong" to the Court and get rid of it. But Bivens implied a cause of action directly into the Constitution, which Congress (presumably) may not be able to change. (If Bivens is common law, maybe Congress can change it, but is Bivens common law? Would Chief Justice Warren have allowed Congress to pass a law saying "if the federal government illegally searches your property, you have no legal remedy"? See also Dickerson v. United States, in which Rehnquist(!) invalidated a statute that similarly tried to neuter Miranda v. Arizona's exclusionary rule.)
Basically, it isn't surprising that a court that feels that courts have no power to imply causes of action into statutes would also feel that implying causes of action into the Constitution is wrong too. And that's what is driving the push to neuter Bivens.
To me, this is all silly; I think courts have broad powers to fashion remedies for constitutional violations, and if a damages suit is the appropriate remedy, courts can do that too. But we have a more formalistic Supreme Court now and they don't agree with me on that.
FWIW, I think it's a category error (the Court's, not yours) to view Bivens in parallel to the implied statutory cause of action jurisprudence, one that reflects the same lack of attention to / respect for the pre-Bivens common law remedial universe. I wrote about this in some detail here:
Maybe I should get an MRI of my brain because something must be wrong. I have listened closely to 5-8 Oral Arguments before SCOTUS, and read a few older cases that were referenced and significant in the subjects those arguments were about, and these articles are making a little more sense each time a new one is published. I have even argued with ChatGPT some situations like States' Rights to direct child custody - a situation so common today no one considers 100 years ago a father and his neighbors would likely hanged a judge in public for interfering with a family.
.. Oh, the good old days. State acts as the Parent and ChatGPT and I disagree that any State has the virtue above the most abusive parents - with examples of children taken and given to abusive torturing starving sexual deviate foster parents and long after the gov family services inspector knew something was wrong, the child found dead or sold .. 'ran away' Child taken because parent swatted bottom in public and Screeching cat-lady Witches too old to enjoy killing more her unborns, called-911 on them.
I wondered when Clapper was found to have lied before congress about surveillance of all us, Snowden's Whistleblower documents published on WikiLeaks make it clear. Yet he was not charged. Other cases like that from Gov actors, and even Facebook's Zuckerburg caught lying. I decided there were some 'dark laws' from Patriot 9-11 Laws that allowed gov and associated subcontractors like Facebook, Amazon, CEOs and others to lie if about national security surveillance etc.
Perhaps why those the lied us into WMD Iraq war killing some million mostly innocent peoples and cost 2 Tillion and so much our sons brothers fathers blood, limbs, minds, that the liars were not locked into humvies and burned to death in public, why Channy was not hanged by privates and tasered till dead, was because of some similar immunity law.
I don't think that anymore. I think that Justice for some powerful and rulers is not found this side of Death, Death, Death.
It sounds like SCOTUS thinks along those lines, some need dragged from house middlenight and tied to a tree and pieces macheted off them until they don't have the blood to scream or breath - perhaps.
Too bad all our testicles are 1/4 the size of our great grandfathers and our FemNazi baby-murdering manhood hating womanfoke not allow us to stop belly crawling licking their boots and "mam, pls kick my gonads because I've been a bad man" that if we were to act free and try to do our Protect and Provide duties she would call 911 and jail and divorce-rape us, torture us and our children with State's support.
Best we can do is hope for a BlackSwan, NukeFire from sky, 3+ billion dead and the survivors free from State, National, and International Satanic enslavement. Local gov that they create is only gov, and public whippings (Tasering) and sometimes hanging of law-makers, judges, teachers, Abortion Witches, mayors, liars, false-witnessers, promise breakers, ...
3+ billion worldwide dead seems about just. Est. number of unborn babies tortured to death worldwide since my birth. Just wage for those sins. Children dead and in God's arms before this Hell tortures them, sexually mutilates them, Joy-Love-Hope-murders them.
God have mercy. Justice is Death, Death, Death - SCOTUS agrees.
Not if the suit names the officer in his personal capacity (to get around sovereign immunity). In those cases, the government might (and usually does) indemnify the defendant, but it's not substituted for them (and usually doesn't defend them).
Thank you for this fascinating and insightful history regarding an issue of vital constitutional significance! Doesn't any such declaration by Congress or SCOTUS that no damages are available in state court violate our Constitution? I think that any such declaration obviously and irrefutably violates (at least) one of the most fundamental principles in our Constitution, i.e., what judges commonly call "federalism," i.e., the division of jurisdiction (separation of powers and assignment of duties) between state and federal authorities--for the purpose of securing the liberty and welfare of the people.
It was well understood during and shortly after the process of ratifying the original Constitution that federal courts were created, in significant part, to give the federal government the power and means to veto and remedy unconstitutional actions by state officials. At the same time, and for analogous reasons, it was well understood that states (including state courts) were to be the guardians of our liberty against unconstitutional encroachments by federal officials. One of the best ways (and even the only way sometimes) for state officials to guard our liberties from federal encroachment is in state court.
In The Federalist 51, Madison assured Americans that the Constitution was written with the following in mind: "It is of great importance in a republic" to "guard the society against the oppression of its rulers." So Americans were assured that the structure of our two governments (state and federal, each with 3 branches) was designed to protect our liberty: "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among [three] distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."
In The Federalist 46, Madison assured Americans that "federal government is to be" made to be "sufficiently dependent on the people." The federal government "will be restrained by that dependence from forming schemes obnoxious to their constituents." Moreover, federal officials' "schemes of usurpation will be easily defeated by the State governments, who will be supported by the people."
In a June 1789 speech to Congress regarding our Bill of Rights, Congressman Madison emphasized that rights (and courts and judges) "are incorporated into the constitution" so that "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every [unconstitutional] assumption [usurpation or abuse] of power."
In the Virginia Resolutions of 1798, Madison (and the Virginia Assembly) emphasized the crucial role states play in our federal system: "it is their duty to watch over and oppose every infraction of those principles [in our Constitution], which constitute the only basis of [our national] union, because a faithful observance of them, can alone secure its existence and the public happiness."
"[T]he powers of the Federal Government" are "limited by the plain sense and intention of the" Constitution, and such powers are "no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states" clearly "have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."
Is there a world coming very soon where federal agents get to violate our rights without being held accountable?
It's already here, isn't it?
Yes and it’ll probably get a lot worse when the government dips its toes into the insurrection act
To be fair (and I say this as someone who agrees with Prof. Vladeck's basic point about the necessity of Bivens), the real doctrinal reason the Court is retrenching on Bivens probably has less to do with Erie generally and more to do with implied rights of action specifically. Bivens was decided when the Court had a policy of liberally interpreting STATUTES to allow lawsuits even if they didn't say so. The most notable example of this is JI Case v. Borak, which allowed securities suits even though the securities statutes didn't provide for a cause of action. The Warren Court felt that if policy arguments supported "implying" a cause of action not provided for in a statute, it was worth doing so.
Conservatives DID NOT like this. The intellectual leader on this was actually one of the more moderate conservatives, Justice Powell. But he dissented in Cannon v. University of Chicago, in 1979, and said this whole business of implying causes of action into statutes was hogwash. Congress gets to decide if there's a cause of action, and if Congress says there isn't one, the Court's job is to obey Congress' wishes.
At the time, Powell's dissent was a solo dissent, but it was massively influential. And by the time Scalia had joined the Court in the late 1980's, the conservatives had picked up on Powell's position and ever since then, although old implied rights of action such as the Borak case were grandfathered in, the Court has adopted Powell's view and is not implying any new causes of action.
Accordingly, whither Bivens? Bivens, to someone who agrees with Powell, is an abomination. At least when you imply a STATUTORY cause of action, Congress can come back and say "you're wrong" to the Court and get rid of it. But Bivens implied a cause of action directly into the Constitution, which Congress (presumably) may not be able to change. (If Bivens is common law, maybe Congress can change it, but is Bivens common law? Would Chief Justice Warren have allowed Congress to pass a law saying "if the federal government illegally searches your property, you have no legal remedy"? See also Dickerson v. United States, in which Rehnquist(!) invalidated a statute that similarly tried to neuter Miranda v. Arizona's exclusionary rule.)
Basically, it isn't surprising that a court that feels that courts have no power to imply causes of action into statutes would also feel that implying causes of action into the Constitution is wrong too. And that's what is driving the push to neuter Bivens.
To me, this is all silly; I think courts have broad powers to fashion remedies for constitutional violations, and if a damages suit is the appropriate remedy, courts can do that too. But we have a more formalistic Supreme Court now and they don't agree with me on that.
FWIW, I think it's a category error (the Court's, not yours) to view Bivens in parallel to the implied statutory cause of action jurisprudence, one that reflects the same lack of attention to / respect for the pre-Bivens common law remedial universe. I wrote about this in some detail here:
https://researchonline.stthomas.edu/view/pdfCoverPage?instCode=01CLIC_STTHOMAS&filePid=13439853040003691&download=true
All this is at once fascinating and maddening. I read it intrigued, but, I confess, it hurts this old brain early in the morning.
Maybe I should get an MRI of my brain because something must be wrong. I have listened closely to 5-8 Oral Arguments before SCOTUS, and read a few older cases that were referenced and significant in the subjects those arguments were about, and these articles are making a little more sense each time a new one is published. I have even argued with ChatGPT some situations like States' Rights to direct child custody - a situation so common today no one considers 100 years ago a father and his neighbors would likely hanged a judge in public for interfering with a family.
.. Oh, the good old days. State acts as the Parent and ChatGPT and I disagree that any State has the virtue above the most abusive parents - with examples of children taken and given to abusive torturing starving sexual deviate foster parents and long after the gov family services inspector knew something was wrong, the child found dead or sold .. 'ran away' Child taken because parent swatted bottom in public and Screeching cat-lady Witches too old to enjoy killing more her unborns, called-911 on them.
I wondered when Clapper was found to have lied before congress about surveillance of all us, Snowden's Whistleblower documents published on WikiLeaks make it clear. Yet he was not charged. Other cases like that from Gov actors, and even Facebook's Zuckerburg caught lying. I decided there were some 'dark laws' from Patriot 9-11 Laws that allowed gov and associated subcontractors like Facebook, Amazon, CEOs and others to lie if about national security surveillance etc.
Perhaps why those the lied us into WMD Iraq war killing some million mostly innocent peoples and cost 2 Tillion and so much our sons brothers fathers blood, limbs, minds, that the liars were not locked into humvies and burned to death in public, why Channy was not hanged by privates and tasered till dead, was because of some similar immunity law.
I don't think that anymore. I think that Justice for some powerful and rulers is not found this side of Death, Death, Death.
It sounds like SCOTUS thinks along those lines, some need dragged from house middlenight and tied to a tree and pieces macheted off them until they don't have the blood to scream or breath - perhaps.
Too bad all our testicles are 1/4 the size of our great grandfathers and our FemNazi baby-murdering manhood hating womanfoke not allow us to stop belly crawling licking their boots and "mam, pls kick my gonads because I've been a bad man" that if we were to act free and try to do our Protect and Provide duties she would call 911 and jail and divorce-rape us, torture us and our children with State's support.
Best we can do is hope for a BlackSwan, NukeFire from sky, 3+ billion dead and the survivors free from State, National, and International Satanic enslavement. Local gov that they create is only gov, and public whippings (Tasering) and sometimes hanging of law-makers, judges, teachers, Abortion Witches, mayors, liars, false-witnessers, promise breakers, ...
3+ billion worldwide dead seems about just. Est. number of unborn babies tortured to death worldwide since my birth. Just wage for those sins. Children dead and in God's arms before this Hell tortures them, sexually mutilates them, Joy-Love-Hope-murders them.
God have mercy. Justice is Death, Death, Death - SCOTUS agrees.
Isn’t it the case that a suit against a federal agent(s) acting officially is defended by the government, which is substituted as defendant?
Not if the suit names the officer in his personal capacity (to get around sovereign immunity). In those cases, the government might (and usually does) indemnify the defendant, but it's not substituted for them (and usually doesn't defend them).
Thank you for this fascinating and insightful history regarding an issue of vital constitutional significance! Doesn't any such declaration by Congress or SCOTUS that no damages are available in state court violate our Constitution? I think that any such declaration obviously and irrefutably violates (at least) one of the most fundamental principles in our Constitution, i.e., what judges commonly call "federalism," i.e., the division of jurisdiction (separation of powers and assignment of duties) between state and federal authorities--for the purpose of securing the liberty and welfare of the people.
It was well understood during and shortly after the process of ratifying the original Constitution that federal courts were created, in significant part, to give the federal government the power and means to veto and remedy unconstitutional actions by state officials. At the same time, and for analogous reasons, it was well understood that states (including state courts) were to be the guardians of our liberty against unconstitutional encroachments by federal officials. One of the best ways (and even the only way sometimes) for state officials to guard our liberties from federal encroachment is in state court.
In The Federalist 51, Madison assured Americans that the Constitution was written with the following in mind: "It is of great importance in a republic" to "guard the society against the oppression of its rulers." So Americans were assured that the structure of our two governments (state and federal, each with 3 branches) was designed to protect our liberty: "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among [three] distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."
In The Federalist 46, Madison assured Americans that "federal government is to be" made to be "sufficiently dependent on the people." The federal government "will be restrained by that dependence from forming schemes obnoxious to their constituents." Moreover, federal officials' "schemes of usurpation will be easily defeated by the State governments, who will be supported by the people."
In a June 1789 speech to Congress regarding our Bill of Rights, Congressman Madison emphasized that rights (and courts and judges) "are incorporated into the constitution" so that "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every [unconstitutional] assumption [usurpation or abuse] of power."
In the Virginia Resolutions of 1798, Madison (and the Virginia Assembly) emphasized the crucial role states play in our federal system: "it is their duty to watch over and oppose every infraction of those principles [in our Constitution], which constitute the only basis of [our national] union, because a faithful observance of them, can alone secure its existence and the public happiness."
"[T]he powers of the Federal Government" are "limited by the plain sense and intention of the" Constitution, and such powers are "no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states" clearly "have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."
Re the Bivens caption, would a hyphenated "Unknown-Named" have resolved the ambiguity?