The Volokh Conspiracy

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Justice Sotomayor Criticizes The "Restless and Newly Constituted Court"

This claim brings to mind Justice Stevens' dissent from Citizens United.


Today, the Supreme Court decided Egbert v. Boule. Justice Thomas's majority opinion reversed the Ninth Circuit's decision, which approved Bivens claims under the First and Fourth Amendments. The Court applied something of a rational-basis test to determine whether a new Bivens cause of action should be implied.

The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. 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." Ziglar, 582 U. S., at ___ (slip op., at 12).

Here, the Court expands on Ziglar v. Abbasi. This 2018 decision split 4-2. Justices Sotomayor, Kagan, and Gorsuch were recused. Still, Justice Kennedy's plurality opinion largely closed the door on Bivens claims. But now, Egbert, with six votes strong, slams that door shut. And Justice Gorsuch would shred the door in a wood chipper.

Justice Sotomayor dissented in part, joined by Justices Breyer and Kagan. She criticized the Court for departing from Ziglar. And she does so in a very personal fashion:

If the legal standard the Court articulates to reject Boule's Fourth Amendment claim sounds unfamiliar, that is because it is. Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases. "

There are two separate barbs there. First, she charges that the reason why the Ziglar standard was "refashioned" was because of the "newly constituted Court." That is, Justices Kennedy and Ginsburg were replaced by Justices Kavanaugh and Barrett. This claim brings to mind Justice Steven's dissent from Citizens United:

In the end, the Court's rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court.

Second, Sotomayor charged that her new colleagues are young and "restless." Still this personalized rhetoric from Justice Sotomayor, especially at this time, is misplaced. Bivens has been subject to withering criticisms for decades. And Hernandez sent a very, very clear message that Courts should be really, really cautious about Bivens claims. Yet the Ninth Circuit did not get the memo. Now, the Supreme Court was compelled to say, "We really, really mean it" in language that not even the ghost of Stephen Reinhardt could ignore. This Court is not "restless."

Ultimately, this decision was not terribly surprising. And Justice Thomas's opinion leaves open the question of whether Bivens will be overruled entirely in an appropriate case:

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. See Ziglar, 582 U. S., at ___ (slip op., at 11). But, to decide the case before us, we need not reconsider Bivens itself. Accordingly, we reverse the judgment of the Court ofAppeals.

I think the vehicle would have to present the same exact claim present in Bivens or a related case, rather than a question about extension.