Clarence Thomas to the Rescue?

In an otherwise awful civil rights decision, the arch-conservative signals his interest in opening the courthouse doors to more victims of state violence.

US Supreme Court Associate Justice Clarence Thomas
Justice Clarence Thomas on June 1.

Saul Loeb/AFP/Getty Images

This week the conservative wing of the Supreme Court nearly completed a four-decade journey to close courthouse doors to plaintiffs seeking compensation from federal officials for violations of their constitutional rights. As Garrett Epps points out in the Atlantic, Monday’s ruling in Ziglar v. Abbasi is an ominous one for an era in which the federal executive branch has shown little respect for the Constitution in matters of terrorism and national security. But even as the court diminished the public’s ability to hold federal officials accountable for their misdeeds, this term’s unlikely liberal icon, Justice Clarence Thomas, signaled he is interested in reforming a doctrine that has become the bane of civil rights advocates: qualified immunity.

The case of Ziglar v. Abbasi began the week following the Sept. 11 attacks, when the FBI received more than 96,000 terrorism-related tips from the public—some based in fact, many based on nothing more than fear of Arabs and Muslims. A group of high-ranking Department of Justice officials, including Attorney General John Ashcroft, then–FBI Director (now Special Counsel) Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, developed and implemented a policy by which undocumented Arab and Muslim men encountered while investigating these tips would be arrested and held in custody under highly restrictive conditions until they could be cleared of suspicion; once they were cleared, they were then deported. Many of the men were detained in a high-security unit at the Metropolitan Detention Center in Brooklyn, where they were held for months and subject to brutal conditions, even after federal law enforcement officials knew of their innocence. The DOJ’s Office of the Inspector General conducted an extensive and detailed investigation into the conditions at the detention center, finding they included “inadequate access to counsel,” “sporadic and mistaken information to detainees’ families and attorneys about where they were being detained,” “lockdown for at least 23 hours a day,” and “detainees placed in heavy restraints whenever they were moved outside their cells,” in addition to a catalog of physical and verbal abuses.

The six plaintiffs, who had no connections to terrorism but were detained for months before being cleared and deported, brought a class action seeking compensatory and punitive damages from DOJ and prison officials for constitutional violations. Plaintiffs also brought a claim under 42 U.S.C. Section 1985, a Civil War–era statute that prohibits conspiracies to violate a person’s equal protection rights.

The key issue facing the court was whether the plaintiffs would be allowed to recover monetary damages from these federal officials. If the plaintiffs were state rather than federal officials, the answer would almost certainly be yes. That’s because in 1871, Congress passed a statute (now 42 U.S.C. Section 1983) that expressly permits plaintiffs to sue state officials for monetary damages caused by violations of rights granted by the United States Constitution or federal laws. But Congress never passed a law that permits plaintiffs to recover monetary damages from federal officials for constitutional violations. In 1971, the Supreme Court held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that a plaintiff could recover monetary damages from federal officers who had violated his Fourth Amendment rights. For the Warren court veterans in the Bivens majority, it made sense that people who suffered violations of their constitutional rights should be able to seek a traditional remedy like money damages. Congress’ silence on the matter was evidence that recovery was not prohibited and “special factors” would have to be present for courts to refuse plaintiffs the opportunity to recover damages where Congress was otherwise silent. Over the next few years, the court made small strides toward expanding the Bivens right of action in a few subsequent cases. But it wasn’t long before the court began to take a sharp and prolonged right turn, as conservative coalitions froze the expansion of Bivens, holding that absent statutory authorization, plaintiffs should not have the right to pursue monetary damages except in situations very closely analogous to those few cases that had already been decided.

In addressing the Abbasi plaintiffs’ claims, the U.S. 2nd Circuit Court of Appeals pushed back against the conservative retreat from Bivens, holding that the plaintiffs could recover monetary damages from both DOJ and prison officials for the alleged constitutional violations. But the Supreme Court reversed in a 4–2 vote. (Justices Sonia Sotomayor and Elena Kagan recused. Justice Neil Gorsuch was not yet on the court for oral arguments.)

Justice Anthony Kennedy, writing for a conservative majority, briefly channeled Justice Antonin Scalia to distinguish the Warren court in stark and saucy terms as the “ancien regime,” suggesting Bivens itself might be decided differently today. His distaste for Bivens is evident as he goes through the motions of weighing reasons for and against allowing the plaintiffs to sue the attorney general and FBI director for discriminatory policymaking that knowingly left innocent people in miserable conditions for much longer than necessary. In the end, the fact that Congress declined to pass a law expressly authorizing monetary damages for people harmed by post–Sept. 11 detention is all that really matters to the majority in determining that the remedy is not available to plaintiffs here. The justices should be appalled that Congress just shrugged when presented with the inspector general’s damning report. Instead, Kennedy treats the decision to ignore the report as evidence that Congress was firm in its intention not to provide a means of compensation for the detainees.

It’s not shocking that the Congress hasn’t stepped up to the plate to ensure that a few of America’s most politically powerless groups—undocumented immigrants, Muslims, and prisoners—are compensated for the injuries they suffered during a frantic response to a horrifying terrorist attack. Members of marginalized groups are invariably the people whose constitutional rights are at greatest risk when the executive branch purports to take action in the name of national security. Japanese Americans interned during World War II. Suspected communists during the Cold War. Muslims and immigrants targeted by President Donald Trump’s breathless and groundless fearmongering. This is when the judiciary is most needed. As Justice Stephen Breyer writes in a dissent joined by Justice Ruth Bader Ginsburg, quoting from Justice John Marshall Harlan II’s concurrence in Bivens, “In wartime as well as in peacetime, ‘it is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy’ ‘for the most flagrant and patently unjustified,’ unconstitutional ‘abuses of official power.’ ” Ziglar abdicates that responsibility when it comes to federal officers.

In times of urgency, the federal government doesn’t ask for permission, and it rarely has to beg for forgiveness. By preventing plaintiffs from seeking damages for actions by high-ranking officials, there is no deterrent to future abuses—particularly against groups that can’t punish those officials or their bosses at the ballot box. Even if the government begs for forgiveness, it’s a hollow apology because the only penalty is a toothless warning not to do it again. Which is why it keeps happening.

After the drama of Kennedy’s evisceration of the Bivens action, his disposal of the plaintiffs’ Section 1985 claim on qualified immunity grounds barely registers—until Clarence Thomas uses it as an opportunity to drop a bombshell by signaling his desire for reforms that could significantly improve civil rights enforcement.

The modern doctrine of qualified immunity prevents government officials from being subject to personal liability for damages unless the official can be shown to have violated “clearly established law”—that is, some closely analogous precedent that would’ve put an officer on notice that his conduct was illegal. The qualified immunity defense is available to officials in all federal civil rights cases, and courts have required plaintiffs to show “clearly established law” with increasing (and sometimes absurd) degrees of specificity in recent years. Qualified immunity has become an impossibly difficult hurdle for plaintiffs to clear and has drawn widespread criticism, including from Kennedy and Thomas. But this week’s concurrence from Thomas is the most direct call for change to date.

Thomas opens his separate concurrence with a reminder that he is not about to bend his judicial philosophy in the service of civil rights, expressing his contempt for Bivens as “a relic of the heady days in which this Court [i.e., the Warren Court] assumed common-law powers to create causes of action.” But just as Thomas’ unique brand of originalism motivated him to call for the court to curb police abuse of civil forfeiture laws earlier this year, his judicial philosophy may find him aligned with plaintiffs against encroaching state officials. Thomas’ concurrence suggests the scope of qualified immunity has grown untethered to analogous protections for certain officials that were available in 1871 when Section 1983 was initially codified. In support of this argument, Thomas cites a forthcoming paper by University of Chicago law professor Will Baude, which argues that qualified immunity has expanded well beyond its historical scope to protect modern officers from liability for claims to which no immunity would have been applicable in the past.

Although Kennedy’s opinion has foreclosed a vast quantity of damages actions against federal officials, the overwhelming majority of civil rights defendants are state and local officials, and Section 1983 is alive and well. If Thomas’ thinking on this issue is generally aligned with Baude’s, civil rights plaintiffs might soon find that a substantial barrier to recovery in a huge quantity of civil rights cases has been lifted.