A bad day at SCOTUS for government accountability

Thanks to a series of recent decisions by the U.S. Supreme Court, it has become exceptionally difficult to sue a federal officer in federal court over an alleged constitutional rights violation. Yesterday, the justices heard oral arguments in a case that could further insulate federal officials from facing any civil liability for their misdeeds.

First, a brief history of how we got here. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Supreme Court allowed a Brooklyn man’s lawsuit against a group of federal agents who allegedly violated his constitutional rights to proceed in federal court. “That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition,” the Court held. “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Lawyers soon began to call it a “Bivens claim” when a federal officer was similarly sued for allegedly violating someone’s rights.

Over the past decade or so, however, the Supreme Court has basically hacked away at Bivens until there is practically nothing left, stopping just short of overruling the precedent entirely. In Egbert v. Boule (2022), for example, the Supreme Court refused to allow a Bivens claim to proceed against an FBI agent who was credibly accused of violating the Fourth Amendment, basically the same scenario that first gave rise to Bivens itself. But because a majority of the current Court now sees Bivens as an example of judicial activism, in which an earlier group of justices overstepped their bounds by recognizing an implied federal cause of action absent a congressional statute, the Bivens precedent now effectively goes unenforced.

Which brings us to yesterday’s oral arguments in the case of Nielsen v. Watanabe. The matter arose after a federal inmate named Kekai Watanabe suffered severe injuries in a prison gang fight. He alleges that he never received proper medical treatment from his captors despite repeatedly requesting it. He later sued staff nurse Francis Nielsen for violating his right to be free from cruel and unusual punishment under the Eighth Amendment.

In Carlson v. Green (1980), the Supreme Court allowed a Bivens claim to proceed in a very similar Eighth Amendment context: namely, the Court allowed the estate of a prisoner to sue prison officials for allegedly contributing to the prisoner’s death by denying him medical treatment.

If the current Supreme Court treated Bivens the same way it treats many other precedents—by actually following the precedent, I mean—then the holding in Carlson v. Green would seem to offer strong support for letting Watanabe’s Bivens claim move forward now. After all, both Carlson v. Green and Nielson v. Watanabe involve the same thing: a Bivens claim about prison officials allegedly violating the Eighth Amendment by failing to provide proper medical care.

But a majority of the current Supreme Court does not seem too keen on allowing any more Bivens claims to proceed in any context, including under the Eighth Amendment. And while yesterday’s arguments seemed to show that the Court will probably again stop short of overruling Bivens outright, a number of justices still seemed to be looking for a reason to deny this latest Bivens claim.

In 2021, Judge Don Willett of the U.S. Court of Appeals for the 5th Circuit registered his objections to what he called “today’s rights-without-remedies regime,” in which the Supreme Court had whittled Bivens down to such nothingness that “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.”

Unfortunately, Willett’s objections remain as valid and urgent as ever.