by Rachel Meeropol, Senior Staff Attorney and Associate Director of Legal Training and Education at the Center for Constitutional Rights
Having litigated the case that would become Ziglar v. Abbasi for the last fifteen years, since the summer I graduated from law school, my first impressions of the Supreme Court’s 4-2 decision were somewhat provincial. I represent six men who were detained after 9/11 for minor immigration violations. Though there was never any reason to suspect my clients of ties to terrorism, they were beaten, harassed, kept from contacting lawyers and loved ones, denied the ability to practice their religion, deprived of sleep and held in solitary confinement until they were cleared of any potential connection to terrorism by the FBI and deported. Last week’s Supreme Court decision denying them an opportunity to sue for monetary damages against the former federal officials that designed the policies that led to their restrictive confinement marks a low point in their long struggle for justice and compensation. Perhaps unsurprisingly, my first thoughts were how they would be impacted and where the case could go from here. With the benefit of a few days distance, I have forced myself to undertake the decidedly unpleasant task of considering the bigger picture: Just how badly does Justice Kennedy’s opinion eviscerate the Bivens doctrine? Spoiler alert: quite a lot.
Some background first: unlike constitutional violations by State officials, there is no statute that allows people to sue federal officials for damages for constitutional violations. Instead, civil rights plaintiffs have relied on a trio of Supreme Court cases, stating with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, that implied a damages cause of action directly under the Fourth Amendment, the Equal Protection Clause and the Eighth Amendment. Since 1980 the Supreme Court has consistently rejected attempts to “expand” the Bivens doctrine to allow damage actions against federal agencies, private corporations and private actors and to limit its application where Congressional action in the field leaves no room or no need for an implied cause of action. But over the same period, the Supreme Court and the circuits assumed the availability of many other Bivens claims that met the central purpose of the doctrine: compensating victims of federal officer wrongdoing where such compensation would otherwise be unavailable, and deterring individual federal officers from future illegality. Abbasi stands in sharp contrast to these decades of precedent.