Going Rogue: The Supreme Court's Newfound Hostility to Policy-Based Bivens Claims

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate. This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an exemption for policy challenges can claim no support in the Court’s own development of the Bivens doctrine, or in the principles that animate the Court’s broader approach to government accountability law.

Equally troubling, the policy exemption has already caused substantial confusion among lower courts. Judging that it lacks a legitimate predicate and defies coherent application, we conclude that the Court should pursue no further its hostility to policy-based Bivens claims.