For all the talk about an eight-member Supreme Court being bad for the country, imagine a diminished, six-member version of the court making, or unmaking, a key principle of American law in ways that will long outlast today’s constitutional moment. That’s exactly what happened Monday, when a grand total of four justices issued a significant ruling that more or less gutted a person’s ability, citizen or not, to sue federal officials who engage in egregious violations of constitutional rights.
On the chopping block was what’s known as a Bivens remedy. It is named for the case Bivens v. Six Unknown Federal Narcotics Agents, a 1971 relic in which the Supreme Court, pretty much out of whole cloth, created a way for plaintiffs to sue federal officials for damages over civil rights abuses. It turns out Congress passed a law to permit similar lawsuits against local officials, but never did the same for the feds. The high court landed on an “implied” right to sue derived from that law and the Constitution itself — even though neither says much about such a right. The decision was a display of “liberal” judicial power at its finest. Lawmakers who didn’t like it could’ve overruled it with a law, but never did.
Enter the Supreme Court’s four conservatives, minus Justice Neil Gorsuch, who hadn’t yet been nominated when the court heard Ziglar v. Abbasi, a case argued just days before Donald Trump took office. The dispute called on the high court to reexamine the validity of Bivens in the wake of post-9/11 abuses. A group of Arab and South Asian nationals detained, abused, and ultimately deported for being suspected of terrorist ties — they didn’t have any — had sued high-ranking Bush-era officials in a New York federal court for authorizing the policies that led to their mistreatment by others farther down the command chain. Obviously, it was a case with the potential to spell trouble for the president who campaigned on banning Muslims, mass-deporting undocumented immigrants, and bringing back torture. In a twist of fate, one of the defendants was former FBI director Robert Mueller, now the special counsel investigating Trump and his associates.
But without a full bench, there’s only so much the Supreme Court could do. The case itself had been pending in the lower courts for a long time, which may explain why two justices, Sonia Sotomayor and Elena Kagan, sat it out — one may have participated in an aspect of it as a lower court judge, the other in her prior role as President Obama’s solicitor general. That left Justice Anthony Kennedy, the court’s perennial center of gravity, to be the bearer of bad news. And with his usual, grandiose language, he told these wrongfully detained terror suspects that there’s nothing the courts can do to help them seek justice. It’s not that he wants to “condone” how deplorably these immigrants were treated after being profiled and rounded up for no other reason than hysteria over their nationality or their skin color. No, sir: “If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic,” Kennedy declared.
The case, Kennedy wanted to make very clear, is not about these men’s “dignity and well-being.” In his view — and that of Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — there’s a bigger principle at play: It is Congress, not the judiciary, which should be passing laws to make these lawsuits possible in the first place. “The question is who should decide whether to provide for a damages remedy, Congress or the courts? The answer most often will be Congress,” Kennedy wrote. Of course, as he himself notes a few lines earlier, “no congressional enactment has disapproved of these decisions” that reinforce the vitality of holding federal officials accountable. But the justice never quite explains why the Supreme Court feels the need to fix something that isn’t broken and Congress hasn’t bothered to address.
So the solution is to keep Bivens narrowly confined to cases where federal agents unlawfully raid a home. Kennedy calls this the “search-and-seizure context,” and that’s okay to keep on the books without congressional approval: “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.”
Kennedy cautioned: “If Bivens liability were to be imposed” in this case, “high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office.” I predict the Trump administration will be citing from Ziglar a lot as it defends against a raft of civil lawsuits. And its lawyers will have the Obama administration to thank, since those lawyers pushed for the position a four-justice plurality has now blessed. In constitutional law, what’s good for the goose is good for the gander.
An impassioned dissent by Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, wasn’t enough to contain the damage. He seems to have been incensed by it — he reportedly read a version of his screed from the bench, an occasion reserved for when you’re really upset about something. He took us all the way back to that jewel of Supreme Court lore, Marbury v. Madison, which left no doubt on the question of whether courts have the power stand up for civil liberties even when the government won’t. “The government of the United States has been emphatically termed a government of laws, and not of men. It will [not] deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right,” Breyer wrote, quoting word-for-word from Marbury’s revered text.
He then proceeded to pick apart the majority’s convoluted reasoning — he pointed to case after case where the Supreme Court recognized that congressional silence means nothing for the judiciary’s own power to still keep the wheels of justice running. And he noted how the Supreme Court established Bivens in the first place to cure a “constitutional anomaly”: that the law allows people to sue just about any state elected official over constitutional wrongs, but no one in the federal government for precisely the same misconduct. “[Our] constitutional design … would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same constitutional transgression,” Breyer wrote, quoting from an older case.
Then there’s the noncitizen detainees, the high-ranking defendants, and the very “context” of the post-9/11 abuse — which included strip searches, sleep-deprivation tactics, slamming against walls, unhygienic conditions of confinement, discrimination itself. For Breyer, none of this is a novel setting for the justices to draw lines around, much less scale back, but rather something the Supreme Court has time and again grappled with and recognized as valid claims under the Constitution: “Because the context here is not new, I would allow the plaintiffs’ constitutional claims to proceed,” Breyer wrote.
As if presaging the coming showdown over Trump’s travel ban, which the Supreme Court could agree to hear any moment, Breyer issued a parting shot that seems aimed at keeping his colleagues on alert about what’s to come. He didn’t mention our current president or his policies explicitly, but he was there in spirit, reflected in the justice’s recollection of the many times the elected branches panicked and did away with civil liberties.
History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights. We have read about the Alien and Sedition Acts, the thousands of civilians imprisoned during the Civil War, and the suppression of civil liberties during World War I. The pages of the [history] themselves recite this Court’s refusal to set aside the Government’s World War II action removing more than 70,000 American citizens of Japanese origin from their west coast homes and interning them in camps — an action that at least some officials knew at the time was unnecessary.
Ziglar won’t go down in history as one of the Supreme Court’s landmark cases, but Breyer’s admonition serves as a reminder that courts, even now that the country is relatively safe, still have a role to play — Trump’s Twitter outbursts be damned. “As is well known, Lord Atkins, a British judge,” Breyer concluded, “wrote in the midst of World War II that amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”