The justices agreed on Monday to hear Nielsen v. Watanabe in the upcoming term, which starts next October. The case will give the court an opportunity to further narrow what are known as Bivens claims, which allow for people to sue federal officials for damages under increasingly narrow circumstances.
Nielsen and other officials declined to obtain specialist treatment for Watanabe or to transport him to a local hospital for treatment. Instead, his filings said, Nielsen gave him over-the-counter pain medication. “Several months after the attack, Watanabe finally received an x-ray: It showed that he had a fractured coccyx and that bone chips had migrated to surrounding soft tissue areas,” his brief explained to the court.
What happens when a government official violates your constitutional rights in some way? If they are a state or local official, like a police officer in a major city, you might file a Section 1983 lawsuit in federal court for damages. That Reconstruction-era law allows people to sue state and local officials in federal court in their personal capacity for violating a federal constitutional right. (More on this later.)
Watanabe instead relied upon an implied cause of action rather than an explicitly created one. This approach became more common after the 1971 case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Most people just call the case Bivens for short. In Bivens, federal agents searched the home of a New York man without a warrant and arrested him on drug-related charges. Bivens sued the agents in question in federal court for violating his Fourth Amendment right to be free from unconstitutional searches and seizures.
Between 1971 and 1980, the Supreme Court applied that reasoning to two other contexts: gender-discrimination lawsuits by congressional staff under the Fifth Amendment and, as relevant for Watanabe’s case, prisoner lawsuits over improper medical care by prison officials under the Eighth Amendment. The latter is grounded in the 1980 case Carlson v. Green. In Carlson, prison officials effectively killed an asthmatic prisoner by holding him in conditions over doctors’ protests, denying him treatment for an asthma attack for roughly eight hours, and then giving him substandard care until he died.
In the 2017 case Ziglar v. Abbasi, for example, the justices imposed a new test on Bivens claims that required lower courts to consider whether they arose in a “new Bivens context,” which is highly disfavored, or if any “special factors” should deter courts from extending Bivens to that new context. In practice, this gives lower courts a variety of tools to block new Bivens claims and narrow the handful of existing grounds for them.
The Ninth Circuit Court of Appeals saw things differently. “Watanabe alleged official action to the same degree of specificity as that alleged in Carlson—‘acts and omissions’ that were deliberately indifferent to Watanabe’s serious medical condition,” a three-judge panel concluded. “Such alleged official actions include the refusal to transport Watanabe to an outside hospital and the failure to provide him competent medical attention.” Accordingly, they sided with Watanabe.
Taken together, the justices’ position is that Bivens is unacceptable because it is Congress’s responsibility, not the courts’, to create federal causes of action. When Congress does create those claims, however, the justices’ position is that the courts must sharply narrow them through judicially-created doctrines like qualified immunity. Judicial power can only make it harder, not easier, for people to hold accountable those officials who violate their constitutional rights.
The overall effect of the Supreme Court’s rulings is a government where officials can often inflict incredible harms on people without any meaningful recourse—in the courts, at the ballot box, or through later prosecutions. Nielsen’s argument, stripped down to its barest essentials, is that prisoners under his care should only be able to invoke the Eighth Amendment against him if they die. I am skeptical that the Bill of Rights’s drafters went to the trouble of ratifying ten amendments for such paltry protections.
In Bivens, Justice Brennan quoted Chief Justice John Marshall in Marbury v. Madison to explain the fundamental reasoning of his decision. “The very essence of civil liberty,” he had written, “certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” The court may ultimately side with Watanabe. After all, they have maintained recently that Bivens and Carlson are still good law. But it is hard to not doubt that they will move further away from Marshall’s simple wisdom—and from the basic protections of the Constitution itself.
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