Alexander Lindvall (Mesa City Attorney's Office) has posted Gutting Bivens: How the Supreme Court Shielded Federal Officials from Constitutional Litigation (Missouri Law Review, Vol. 85, No. 3, 2021) on SSRN. Here is the abstract:
Forty years ago, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court allowed aggrieved citizens to sue federal agents for violating their constitutional rights. In two recent decisions, however, the Supreme Court gutted Bivens beyond all recognition. In Hernández v. Mesa, the Court held that a United States Border Patrol agent could not be sued for shooting an unarmed fifteen-year-old in the back. And in Ziglar v. Abbasi, the Court held that several high-ranking federal officials could not be sued for implementing and administering a policy that systematically rounded up, jailed, and tortured Muslim immigrants.
These decisions are disturbing and are inconsistent with our country’s most basic values. But what is even more disturbing is that these cases are unsurprising given the Court’s hostility toward civil rights litigation. Over the last several decades, the Court’s “conservative” majority has placed a series of unnecessary and burdensome procedural hurdles in front of civil rights plaintiffs. The Court’s justiciability doctrines, governmental immunity requirements, and Bivens limitations have made the federal courts inaccessible to many plaintiffs and have made many constitutional rights unenforceable. This Article argues against this trend and urges the Court or the Legislature to remove these procedural hurdles to ensure that constitutional rights are meaningfully and consistently enforced.
