The Supreme Court will hear Nielsen v. Watanabe on November 9, a case that could eliminate the ability to sue federal officers for constitutional violations. The case centers on Kekai Watanabe, a formerly incarcerated man who alleges he received inadequate medical care in federal prison in violation of the Eighth Amendment. He claims he received only intermittent pain medication for months despite requests for hospital treatment, until an X-ray revealed a fractured tailbone with bone chips in surrounding tissue.
Watanabe's claim closely mirrors Carlson v. Green (1980), the last case in which the Supreme Court ruled in favor of someone suing a federal officer under Bivens v. Six Unknown Named Agents (1971). Bivens established that federal law enforcement officers may be sued if they violate constitutional rights. A federal appeals court concluded Watanabe's claim "is identical to Carlson in all meaningful respects" and allowed his lawsuit to proceed.
The Supreme Court's Republican majority has grown increasingly hostile to Bivens suits over recent years. The Court has called Bivens claims a "disfavored judicial activity" and instructed judges to reject them if there is "any rational reason" to do so. In one decision, justices said they doubted they would reach the same result if Bivens were "decided today." The defendants' lawyers in Nielsen have asked the Court to overrule Bivens entirely.
The legal dispute centers on whether Congress must specifically authorize suits against federal officers. Republicans on the Court argue that absent such authorization, no suits should proceed. Proponents of Bivens argue the 1971 decision built on a long line of cases permitting suits against federal officials stretching back to the early 1800s. Since Carlson, the Court has rejected 13 different suits raising Bivens arguments. The Court's six Republican justices control the outcome.