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Thursday, June 22, 2017

The Nine Lives of Bivens (SCOTUS Symposium)

In Ziglar v. Abbasi, the Court ruled against plaintiffs seeking relief from allegedly unconstitutional discrimination and abuse in the wake of 9/11. Perhaps the largest flashpoint in the case concerned the Court’s treatment of Bivens, a landmark ruling from 1971 that created a cause of action for damages for Fourth Amendment violations by federal officers.

Over the pasts few days, critics of Abbasi have argued that Bivens is now “all but overruled” and “all-but limited … to its facts.” But similar claims have been made before—and will likely be made yet again. If Bivens has nine lives, it seems to have two or three left to go.

By way of background, Abbasi declined to recognize a cause of action for damages against federal officials in the context of the plaintiffs’ case. However, Abbasi clearly and emphatically asserted that Bivens remains “settled law." To wit:

[I]t must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere.

So Bivens abides as a “fixed principle” in the “common and recurrent sphere of law enforcement.”

But consider the following tweet from a characteristically insightful thread by Steve Vladeck:

Unless Hernández walks some of this back (it probably would've come down today if so), #SCOTUS has all-but limited Bivens to its facts.

If Abbasi had really “limited Bivens to its facts,” then the outcome in Hernandez would be foreordained. Yet the tweet acknowledges that Hernandez might yet give Bivens new life.

Writing at Take Care, Mike Dorf is to similar effect in a learned post that substantially concurs with Steve’s analysis:

The Abbasi decision now all but overrules Bivens. Although the Court preserves Bivens "in the search-and-seizure context in which it arose," Justice Kennedy's decision for a 4-2 Court (minus Justices Sotomayor, Kagan, and Gorsuch) severely cuts back on Bivens in just about every other context.

But if Abbasi “all but overrules Bivens,” can it really be true that Abbasi also “preserves Bivens” for a large category of cases?

Or consider this: if the Court eventually rules against a Bivens remedy in the search-and-seizure context, would Bivens have been “all but overruled” or “all-but limited … to its facts” for a second time?

Or perhaps for the third time. Back in 2010, Steve wrote an article in which he noted (and dissented from) “the consensus view … that Iqbal is an unremarkable addition to a long line of Supreme Court decisions over the past quarter-century in which the Court has effectively limited Bivens to its facts—just another nail in a coffin long-since sealed."

And before that, in 2008, Natalie Banta’s student note argued that “Bivens has effectively been limited to its facts and after Wilkie is very close to a complete demise."

And before that, the Court declared in Malesko (2001): “Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants.” Wasn’t that just as much a precedential foreboding of Bivens’s impending demise?

Yet Bivens lives on, even if only to be killed off again. Similar stories could be told about Miranda, Flast, and other cases.

What can we learn from this zombie tale? Here are three quick points.

First, saying that Bivens has been “narrowed” lacks the rhetorical force of saying that it’s been “all but overruled” or “limited to its facts.” But the vocabulary of narrowing has the advantage of being more accurate. Abbasi narrowed Bivens by adopting a reading of that case that is narrower than the best available reading. And a precedent that is narrowed (as opposed to overruled) is still good law and has a chance of growing yet again. (Think of Lemon, which Justice Scalia famously compared with a "ghoul" that is "repeatedly killed and buried," only to emerge once more.) Further, we should assess narrowing differently from overruling. To evaluate Abbasi, we need to know how much the relevant precedent has been narrowed, how much value the precedent has lost, and whether the narrowing was supported by legitimate reasons. The stare decisis factors for overruling shouldn't apply.

Second, in arguing that the Court has effectively overruled Bivens or limited it to its facts, commentators implicitly privilege Bivens over the more recent cases cutting back on it. But all these cases are precedential, and the Court’s precedential duties accordingly point in different directions. In fact, the long line of cases narrowing Bivens may in themselves support a precedential argument in favor of further limitations on Bivens.

Justice Kennedy’s majority opinion in Abbasi underscores that point. For example, the Court quotes Iqbal in reasoning that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” And the Court includes a long string cite of controversial cases that declined to find Bivens applicable. Perhaps Abbasi alters Bivens in a qualitatively greater way than prior decisions; but even if so, that added step may itself find precedential support in the foundations laid in cases like Malesko, Wilkie, and Iqbal.

Justice Breyer’s excellent dissent in Abbasi recognizes this aspect of the Court’s reasoning and responds as follows:

Thus the Court, as the majority opinion says, repeatedly wrote that it was not “expanding” the scope of the Bivens remedy. But the Court nowhere suggested that it would narrow Bivens’ existing scope.

However, the Court often says that it is “not extending” when it is narrowing. (That is a statement of fact, not an excuse.) Abbasi itself supplies an example, as the Court yet again says it’s simply choosing not to extend. But, as the Abbasi dissent recognizes, narrowing is the order of the day.

Finally, the regularly renewed lamentations over Bivens’s demise raise the question of whether it is “easier” or less costly for the Court to narrow a disfavored precedent gradually, as opposed to overruling it immediately. There may not be one general answer to this question. When overruling occurs in a salient case, as in Citizens United, it can garner enormous critical attention. But overruling often occurs more discreetly. And narrowing over time allows for waves of criticism. The Court may be able to kill a case by a thousand cuts, but it too could end up scarred. Abbasi illustrates this possibility, as the Court controversially narrowed in a high-profile case.

Of course, the fact that Bivens has been narrowed over time doesn’t mean that it will ever be overruled, effectively overruled, or limited to its facts. Perhaps the Court meant it when it said that there are “powerful reasons to retain” Bivens, if only within a certain “sphere.” We should hardly be surprised if a case with nine lives outlives us all.  

Posted by Richard M. Re on June 22, 2017 at 08:30 AM in 2018 End of Term | Permalink


Marty -- of course critics of the decision think it is wrong and bad. But I took Richard's post to be about the rhetoric used in describing the significance of the decision, not whether that significance is a good thing or a bad thing. You are right, though, that we can't peer into anyone's mind, and perhaps none of the rhetoric used in the public discussions of the case has a design or strategy behind it. Maybe it just came out that way randomly, or out of frustration or anger.

Posted by: Orin Kerr | Jun 23, 2017 12:46:01 AM

Bivens hasn't been overruled, the Court said it wasn't EXPANDING Bivens.

Posted by: anon | Jun 22, 2017 10:52:41 PM

Radical thought: Those academics inveighing against the evisceration of Bivens (e.g., Pfander, Vladeck, Dorf) are doing so because they think it's wrong, and based on bad history and faulty logic, and will result in more unconstitutional conduct, which they think is, on the whole . . . not a good thing.

They ain't got no "troops." And I doubt any of them is naive enough to think there's any "strategy" or "tactic" to turn the clock back to 1980 anytime soon.

Posted by: Marty Lederman | Jun 22, 2017 10:23:59 PM

Asher, my sense is that at least some of those who have these strategies are trying to shape their side's attitudes for the next time their side has power. Their view is out of power now, sure. But someday that will change and you might want to help define your side's priorities for the next time your side has 5 votes. There was (a lot of) analogous positioning on the right after the Supreme Court's Obamacare cases.

Posted by: Orin Kerr | Jun 22, 2017 3:43:55 PM

So, you both are right; claims that Bivens is all but dead are frivolous, as Bivens never even existed in this context, outside of this one lawsuit. Bivens today still does exactly the work it did a week ago; it applies in the three areas it did already. And Orin is right that this is about "getting the troops worked up." What I don't get is the "value in getting the troops worked up" at the moment. Abbasi is the law and obviously that won't change when Gorsuch gets to vote in a Bivens case. If you think there's even a 5% chance of that, you're crazy. If you think that whoever replaces Kennedy, should he retire in the next couple years, will be kind to Bivens, you're also crazy. If you think Kennedy will read Abbasi commentary and switch his vote in Hernandez, you're out of your mind. If you think the Senate will make an issue of Bivens in confirmation hearings, you're also crazy. And if you think Congress will make Bivens a statutory cause of action, you're really crazy, though I'm sure someone will waste his time encouraging Rand Paul to co-sponsor some legislation that could never go anywhere. So what's gained today by getting people worked up with exaggerated claims about Bivens' death? If sympathetic lower courts push back against Abbasi, that's a great way to put Bivens in greater jeopardy. The time to get people worked up about Bivens is when they can do something about it.

Posted by: Asher Steinberg | Jun 22, 2017 2:37:14 PM

I take much of this to be just rhetorical tactics. Today, when there is value in getting the troops worked up, Bivens is all but dead and Abassi killed it. Tomorrow, when the next case is being litigated, Bivens will be in great shape and Abassi only a flesh wound.

On the broader point, though, I tend to doubt it makes much difference whether the Court announces an overruling (in whole or in part), in terms of it being easier of less costly. The academics will have their reaction either way, and I think the Justices don't follow that too closely. I don't think they feel scarred by that reaction, even when it's pretty harsh.

On the other hand, I suspect the Justices prefer not to talk expressly about overruling cases because it make their work seem more discretionary and therefore more open to challenge to more general readers. If the Court expressly overturns a precedent, it means that the new court thinks the old court was wrong. That suggests that the new Court was making a decision that a future court could make about its own work: Maybe the new decision will be seen as wrong someday, too. Rhetorically, if you don't say you're overturning anything and instead just present all the pieces pieces as naturally and logically fitting, then the law looks more stable and the decision on a more firm foundation.

Posted by: Orin Kerr | Jun 22, 2017 2:09:06 PM

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