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 so 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.

First posted on Prawfs.

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