The Supreme Court Looks to Expand Its Empire of Impunity

The narcotics agents argued that they could not be sued in their personal capacity because Congress had not created a cause of action to do so. The Supreme Court, led by Justice William Brennan, sided with Bivens. While Brennan acknowledged that the Fourth Amendment “does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation,” he concluded that Bivens could rely upon an implied cause of action instead to vindicate his violated rights.

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.

Since Carlson, the Supreme Court’s increasingly conservative majority has gone out of its way to clip the wings of Bivens claims. Justices ranging from Warren Burger to Neil Gorsuch have argued that, under the Constitution’s separation of powers, it is Congress’s responsibility to create causes of actions to vindicate constitutional rights, not the judiciary’s. To that end, they have effectively refused to extend Bivens to new contexts, while also—for reasons known only to the justices—declining to overturn Bivens altogether.