His lawsuit faced a paradoxical problem. A federal statute, 42 USC 1983, authorizes suits against state officials for “the deprivation of any rights ... secured by the Constitution and laws.” But Congress has never enacted a similar statute for lawsuits against federal officials. In Bivens, the court recognized a limited judge-made remedy for certain constitutional violations by federal officials. If Congress had not set up a specific scheme to address a type of violation, the courts could use their traditional power to allow damage suits.
The court added that “special factors” might bar damages in specific areas. In the years since Bivens, Warren Court-style liberalism has given way to judicial skepticism about rights. Bivens cases, the court said not long ago, are “disfavored” and “special factors” have multiplied. The court has rejected most Bivens claims in “new contexts.”
Arguing before the Second Circuit, the officials said the “context” should include the nation’s “response to an unprecedented terrorist attack.” The Second Circuit rejected that argument, arguing that “context” referred to the rights asserted—and that prison abuse cases are a familiar Bivens area.
This, the Supreme Court majority said, was error: “new context” analysis isn’t limited to the legal area involved. Instead, from now on, courts are to ask whether a claim is “different in a meaningful way” from earlier claims—a free-wheeling inquiry that should include “the rank of the officials involved” and “the risk of disruptive intrusion” into legislative or executive operations. In this case, the majority said, the context was “new” because “respondents’ detention policy claims challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil.” That “new context” required that the courts avoid any collision with the other branches’ national security policies—unless invited to do so by passage of a congressional remedial statute.
The court did not hold that such cases can’t be heard at all. Future detainees, Kennedy wrote, might be able to challenge future conditions while detained, through actions for an injunction, or petitions for habeas corpus. But that time, in this case, has long passed. (Arguably, in fact, that time never came. The detainees were held largely incommunicado, given at best limited access to lawyers, and—because they were held on immigration issues, a civil matter—had no access to court-appointed counsel. By the time they were freed, injunctions and habeas writs would be of no help.)
The plaintiffs had also alleged one cause of action under a specific federal statute, 42 U.S.C. 1985(3), which prohibits “conspir[ing]” to deprive any person or group of equal protection; the policy, plaintiffs argue, was based on nationality and religion, and thus the constant conferring by authorities about their confinement was a conspiracy. The court struck this allegation too, arguing that the law does not clearly allow officials with one government department—in this case the U.S. Department of Justice—to be charged with conspiracy. Such a suit might “chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies,” Kennedy wrote.