WASHINGTON (CN) — Tiptoeing its way around the landmark Bivens precedent, the Supreme Court reined in civil liability against federal officers in a 6-3 decision Wednesday.
The right for individuals to seek money damages from federal officers for constitutional violations was enshrined in the 1971 ruling Bivens v. Six Unknown Named Agents. Over the years, however, the precedent has been incrementally weakened, and Justice Clarence Thomas wrote for the majority Wednesday that the present-day court wouldn't back the right at all.
“Since it was decided, Bivens has had no shortage of detractors,” Thomas wrote. “And, more recently, we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution. But, to decide the case before us, we need not reconsider Bivens itself.”
Every conservative justice joined Thomas in the majority, and Justice Neil Gorsuch wrote separately to say that the court should have gone further.
“In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope, and in the process invite still more ‘protracted litigation destined to yield nothing,’” the Trump appointee wrote. “Instead, we should exercise ‘the truer modesty of ceding an ill-gotten gain,’ and forthrightly return the power to create new causes of action to the people’s representatives in Congress.”
The liberal justices meanwhile slammed the majority for a ruling that they say will make it harder for those who suffer Fourth Amendment abuses to file suit.
“Today’s decision does not overrule Bivens,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Stephen Breyer. “It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.”
The case stems from a suit filed by Robert Boule, who operates a bed and breakfast in Washington state near the Canadian border, against Border Patrol agent Erik Egbert. Boule worked as an informant for years but reported Egbert to Border Patrol superiors after the two men were involved in an altercation that left Boule with a back injury. When Boule got audited by the IRS following his report on Egbert, he accused Egbert of tipping them off in retaliation.
A federal judge ruled in favor of Egbert at summary judgment, but the Ninth Circuit reversed, finding Boule had valid claims under the First and Fourth Amendments.
Egbert’s attorney and the government urged the court not to expand Bivens when the court heard oral arguments in March, cautioning against the onslaught of retaliation claims that might come as a result. Boule’s attorney counted that the justices could still offer a remedy in the case even under the narrow precedent.
The precedent has been weakened in recent years, notably in 2020 when the justices did not apply Bivens in Hernandez v. Mesa, a case concerning a Border Patrol agent who shot a Mexican national across the border.
Dealing another blow to Bivens, the majority concluded Wednesday that it was wrong for the Ninth Circuit to create causes of action for Boule’s claims.
“The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action,” Thomas wrote. “A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’ Thus, a court should not inquire, as the Court of Appeals did here, whether Bivens relief is appropriate in light of the balance of circumstances in the ‘particular case.’”
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