The “live” audio (no video) of the hearing can be heard at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.

Tomorrow’s case: Egbert v. Boule.  The hearing starts at 10 a.m. and is scheduled for 70 minutes.

Background:  When school students enter high school, they begin learning about civics, including some basic things about the Constitution – such as the division of government powers between three branches.  For grown-ups, that understanding widens into an appreciation that the Constitution guarantees that kind of separation of powers in order to protect human liberty, by avoiding concentrations of authority.  That was uppermost in the minds of those who wrote the basic document in 1787.

The Supreme Court often gets drawn into marking the constitutional lines of separation between Congress, which makes the laws; the President, whose branch implements the laws, and the federal courts, which interprets what law and the Constitution mean in real-world legal controversies.

In general, America’s constitutional order operates on an assumption that, for every legal wrong, there will be a remedy.  In 1803, Chief Justice John Marshall wrote in Marbury v. Madison: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection.”

Most often, however, it is up to Congress to create remedies, by passing legislation.  The Supreme Court, of course, can recognize new constitutional rights, but those rights must usually depend on Congress to provide a remedy.

The hearing on Wednesday pulls the Court back into a modern constitutional controversy over creation of legal remedies, a dispute that has occupied the Court for a full half-century.  The Court in 1971 decided on its own to create a right for individuals to sue in federal court to enforce their rights under the Constitution, seeking money damages from the officers involved.

In that decision, in Bivens v. Six Unknown Narcotics Agents, the Court by a 6-to-3 vote ruled that a lawsuit based directly on the Constitution’s Fourth Amendment ban on “unreasonable searches” could proceed even though Congress had not passed a law to create such a remedy.

That case involved a lawsuit by a Brooklyn, N.Y., man, Webster Bivens, whose apartment was raided by narcotics agents in 1965.  He was manhandled and humiliated in front of his family.  He was never prosecuted for a crime.  He sued six agents personally, and later settled the case for $15,000.

The Bivens decision may have seemed, at the time, as if it were opening an opportunity for a wide variety of similar lawsuits, seeking to collect damages directly from federal officeholders.  One of the dissenters, Justice Harry A. Blackmun, accused the Court of creating “judicial legislation” that would lead to an “avalanche of new federal cases.”

As matters have turned out, however, only twice after 1971 has the Court actually created another “Bivens remedy.”  In 1979, the Court permitted a damages lawsuit against a member of Congress for sexually harassing a female aide (she claimed a violation of her Fifth Amendment right to due process), and in 1980, the Court allowed a woman to sue Indiana prison officials for “cruel and unusual punishment” in violation of the Eighth Amendment, after her son died from injuries inflicted by prison guards.

In the four decades since, the Court has refused ten times to expand the Bivens right to sue for constitutional violations by federal officials.  The most recent such refusal came in 2020, when the Court would not allow a Mexican family to sue a U.S. Border Patrol agent for shooting across the border, killing their 15-year-old son.

In one of those ten decisions, in 2017, the Court majority commented that the decisions in 1971, 1979 and 1980 “might have been different if they were decided today.”  Indeed, some members of the current Court have suggested that, at some point, the Court might rethink the basic ruling in the Bivens case.

Apparently, however, there may not be sufficient support at this time for going that far.  In the case the Court will be hearing on Wednesday, it was asked explicitly to “reconsider Bivens.”  When the Court agreed in November to hear that case, it did not include that question, saying it would decide only two specific questions about expanding the concept.

The new appeal, by a U.S. Border Patrol agent, Erik Egbert of Blaine, WA, seeks to block a lawsuit asking for damage payments from him personally.  A local B&B owner in Blaine, Robert Boule, claims that Egbert roughed him up during a driveway encounter over whether Boule was helping to smuggle a non-citizen across the border into Canada in 2014.  Boule’s B&B is very close to the Canadian border, and the Border Patrol has long suspected illegal activity at that site.  (Almost comically coincidental, Boule’s B&B is named “Smuggler’s Inn.”)

Boule complained to the officer’s superiors, claiming that Egbert had injured his back in the incident.  Later, Boule’s lawsuit made two claims for damages: first, that the officer used “excessive force” in violation of the Fourth Amendment ban on “unreasonable seizures,” and, second, that the officer had retaliated against him for filing his complaint – an alleged violation of his free-speech rights under the First Amendment.  (Egbert allegedly retaliated by getting other federal agencies, including the Internal Revenue Service, to investigate Boule.)

Although a federal judge declined to establish either new basis for a lawsuit, a federal appeals court ruled the opposite way, clearing the way for a trial on both of Boule’s constitutional claims.

Egbert appealed to the Supreme Court, arguing that the decision runs counter to the four- decade pattern of the Court refusing to expand the “Bivens remedy” into new areas of constitutional protection. He also contends that the appeals court decision in his case runs counter to a number of rulings by other appeals courts.  His appeal has picked up the support of the Biden Administration.

The questions before the Court:  Will the Justices create a new right to sue a federal officer for violations of the First or Fourteenth Amendments?  Will the doctrine of the Bivens precedent be extended to officers of the Border Patrol?

Significance:  This is one of those cases, not great in number, when the Court’s willingness to grant review was hardly in doubt.  For years, it has shown no interest in expanding the idea of new forms of damages lawsuits against federal officials, in the absence of new legislation by Congress to do so.  Moreover, the final outcome is close to being predictable.

The Court, though, will not decide the case in a pro forma way.  If, as seems highly likely, the Egbert appeal already had persuaded a majority that the appeals court was wrong, the case could have been disposed of in a summary order, perhaps with a brief opinion explaining why.  The Court chose instead to review the case with legal briefs, a hearing and full deliberation.

Although the Court chose, in accepting review, not to reexamine its 1971 precedent, that does not mean it cannot do so after hearing the case.  If it were to cast aside the Bivens approach, in this case or in some future case, that might have symbolic importance but not much more.  Federal officers have not had much to fear from that remedy over the past four decades.

It took the votes of only four Justices to grant review; it would take five votes to overturn the appeals court ruling or to overturn the Bivens precedent.

The Court’s next round of hearings begins on March 21.