The U.S. Supreme Court began the day with 30 cases remaining to be decided. The Court scheduled an additional opinion day for Wednesday. The Court could only manage one opinion today. SCOTUS is trolling us.
Note: Is the Roberts Court the Least Productive Court of All Time?: “Based on the historical evolution of the Court’s institutional power and legitimacy, the Court’s diminished modern day merits docket implies that not only is the Court less productive now than it was before, but that it currently may be the least productive Court ever.”
The opinion is in Egbert v. Boule, by Justice Thomas. Chief Justice Roberts and Justices Alito, Kavanaugh and Barrett join the opinion in full. Gorsuch concurs in the judgment. Sotomayor has an opinion concurring in the judgment in part and dissenting in part, joined by Breyer and Kagan.
The decision of the Ninth Circuit is reversed. Thomas writes that “[b]ecause our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.” The Court holds that Bivens v. Six Unknown Federal Narcotics Agents does not extend to create causes of action for a Fourth Amendment excessive-force claim and a First Amendment retaliation claim against a Border Patrol agent.
Howard Wasserman explains at SCOTUSblog, Court again rejects extension of Bivens suits against federal officials:
Continuing an unbroken decades-long run, the Supreme Court on Wednesday refused to extend the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents. In an opinion by Justice Clarence Thomas, the court held that a Washington state innkeeper does not have implied causes of action against a federal agent for alleged First and Fourth Amendment violations arising from the enforcement of immigration laws along the border.
Robert Boule is a U.S. citizen who owns and runs the Smuggler’s Inn, a bed-and-breakfast abutting the Canadian border in Blaine, Washington; drives a car with a “SMUGLER” license plate; and worked as a confidential informant for the Customs and Border Patrol. Erik Egbert, a Border Patrol agent, attempted to speak with a guest, newly arrived from Turkey via New York, outside the inn. When Boule asked Egbert to leave his property and attempted to intervene, Egbert shoved him to the ground; when Boule complained to Egbert’s superiors, Egbert allegedly contacted the Internal Revenue Service and state agencies, resulting in a tax audit and investigations of Boule’s activities.
Boule sued Egbert under Bivens, the 1971 decision that (in some circumstances) allows claims for money damages against federal officials for constitutional violations. Egbert brought an excessive-force claim under the Fourth Amendment and a First Amendment retaliation claim.
The U.S. Court of Appeals for the 9th Circuit allowed both claims to go forward. On Wednesday, the Supreme Court reversed. It held both claims involved new contexts that differed from the limited Bivens claims the court has already recognized. The court has never recognized a Bivens claim for a First Amendment violation, and the immigration and border placed the Fourth Amendment claim in a new context.
“[I]n all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts,” Thomas wrote.
Justice Neil Gorsuch concurred in the judgment, arguing that the court should not leave false hope for any future Bivens claims, should reject any judicial power to create causes of action, and should return the exclusive power to Congress.
Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, concurred in part and dissented in part. Sotomayor agreed that Boule’s First Amendment claim could not proceed under Bivens, but argued that the Fourth Amendment claim was “materially indistinguishable” from the routine Fourth Amendment claim in Bivens.
We’re not Slouching Towards Gomorra so much as Galloping Toward Fascism.