Bivens closer to death (and Thomas would kill it)

In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday in Hernandez v. Mesa that a Bivens claim was not available against a border-patrol agent who shot a Mexican national standing on the Mexico side of the border.

Justice Alito's opinion for five adopts the most restrictive view of Bivens, defining a new context to include virtually any identifiable factual distinction (here, the fact that the plaintiff was injured outside the U.S.), despite the right (Fourth and Fifth Amendment) and basic facts (excessive force by law enforcement standing on U.S. soil) being the same. Justice Thomas, joined by Justice Gorsuch, goes bigger--having cabined Bivens scope and limited its precedential value, the Court should "abandon the doctrine altogether." Justice Ginsburg wrote the dissent for Breyer, Sotomayor, and Kagan.

One notable point of departure between majority and dissent is how each reads Abbasi. The majority reads it as the latest in a 40-year line of cases rejecting Bivens claims, reaffirming the narrowness of past factual contexts and the newness (and thus inappropriateness of a Bivens suit) in other contexts.. The dissent emphasizes that Abbasi, while rejecting a Bivens action against high-level policymaking officials for national-security policy choices, "cautioned" against reading it to eliminate or limit core Bivens claims against rank-and-file law enforcement officers for unreasonable seizures.

If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings. The "special factors" analysis will come around to congressional failure to authorize such a cause of action by pointing to § 1983 and the fact that it is limited to state (not federal) officials and plaintiffs within in the United States; that congressional failure will require judicial hesitation. The dissent's response--Congress enacted § 1983 in the middle of Reconstruction with a specific concern in mind and was not thinking about federal officials shooting people across borders--does not sway the rest of the Court. This factor always comes to conflicting views of what to do with congressional silence: The majority reads inaction as congressional intent not to reach the situation, while the dissent reads it as leaving the situation to Bivens (lest it create a situation in which it is "damages or nothing").

This decision is unsurprising, as conservatives have long hated Bivens. On the other hand, conservatives increasingly resort to the courts and constitutional litigation. What happens when conservative groups want to challenge ATF agents raiding their compounds?