Thread by @dilanesper

Today, SCOTUS once again holds Bivens, which says you can sue federal agents for violating the Constitution, cannot be extended.

Bivens, more than any other case, shows the difference between liberal and conservative legal thinking. 1/ #appellatetwitter

supremecourt.gov/opinions/21pdf…

The basic problem is that oftentimes money damages is the only possible remedy for a violation of your constitutional rights. For instance, if the government ransacks your house and you are innocent, you won't get prosecuted, but your house is still ransacked. 2/

Because there's no prosecution, you can't take advantage of the exclusionary rule and get unlawfully seized evidence thrown out. So as Justice Harlan said, "it's damages or nothing"- either you can recover damages, or you are just stuck with a violation of your rights. 3/

On the state and local level, there's a statute that addresses this, 42 USC 1983. It says you can sue people who violate your constitutional rights under color of state authority. So if LAPD ransacks your house, you can sue the officers. 4/

But if the FBI ransacks your house, there's no statute. We can, and should, be pretty cynical about this. Essentially Congress was perfectly fine authorizing remedies against state and local officials, but wanted to immunize the feds. Government works like that. 5/

So the Warren Court, a very liberal Supreme Court, looked at this situation and said, sensibly, that if your constitutional rights are violated, and you can't take advantage of the exclusionary rule, there must be a remedy. Otherwise it will be open season on the Constitution. 6/

So the Warren Court- and I say this with all sympathy for what they did- made up a remedy out of whole cloth. Nothing in the Constitution says that you can sue federal agents, and no statute says it, but the Warren Court said it's an IMPLIED right of action. 7/

And that's really what liberal legal interpretation is all about- you have a practical problem, so you interpret the law in a way that solves the practical problem. After all, it makes no sense to have constitutional rights if nobody can enforce them, right? 8/

In contrast, conservatives disliked Bivens. Their approach says that judges aren't supposed to be overriding the will of Congress or making stuff up just because a problem needs to be solved. That's a misuse of judicial power. So conservatives have tried to cut back Bivens. 9/

So where we stand now is that while Bivens literally still applies if you get searched by federal narcotics agents (the exact facts of Bivens), if there are any facts that are different, SCOTUS deems it an "extension" of Bivens and won't allow for liability. 10/

And this is terrible! It means that for some constitutional rights, the federal government can violate them willy-nilly and you have no remedy at all. And yes, federal agents violate the Constitution all the time, just as state and local police do. 11/

What we obviously need is a statute. Especially since federal power continues to expand. More and more law enforcement, whether it's drugs or even violent crime (classified as "terrorism"), is done at the federal level. Which means more rights violations without remedies. 12/

But Congress won't pass a statute, because it is responsive to federal employees unions- and probably because a lot of people in the federal government want the freedom to violate people's rights if they think it is "necessary". 13/

In any event, this Supreme Court is never going to expand Bivens (and may eventually overrule it). But I think the Warren Court was right that interpretations of constitutional rights that make them meaningless are to be avoided, no matter what Congress thinks. 14/

I discussed all of this in this piece I wrote last year. End/

dilanesper.substack.com/p/you-should-b…