What are notable Supreme Court cases building on Bivens doctrine?
Executive summary
The Supreme Court created the Bivens cause of action in Bivens v. Six Unknown Named Agents , then extended it only twice in the 1970s before sharply curtailing its reach in the 21st century; recent decisions make new Bivens claims rare and treat judicial creation of damages remedies as disfavored [1] [2] [3]. The key cases to trace that arc are Bivens itself, Davis v. Passman , Carlson v. Green , and the modern retrenchment exemplified by Ziglar v. Abbasi and Egbert v. Boule [2] [4] [5] [3] [6].
1. Bivens : The origin story that implied a damages remedy
In Bivens the Court held that a federal agent’s alleged Fourth Amendment violation—handcuffing and abusive entry by narcotics agents—gave rise to an implied cause of action for money damages even though no statute authorized it, establishing the baseline Bivens doctrine [1] [7] [8].
2. Davis v. Passman and Carlson v. Green : The two narrow extensions
Following Bivens, the Court recognized two additional, fact‑specific damages remedies: Davis extended an implied remedy for gender‑based employment discrimination under the Fifth Amendment and Carlson allowed an Eighth Amendment inadequate‑care claim by prisoners against federal officials, producing the trio of instances in which the Court has sanctioned Bivens relief [2] [3] [4].
3. The long drought and doctrinal tightening: courts and commentators react
After the Carlson decision the Supreme Court largely stopped creating new Bivens causes of action, and scholars observed that the doctrine has been progressively narrowed to the point of near obsolescence, with success rates and doctrinal viability intensely debated in legal literature [4] [9] [10].
4. Ziglar v. Abbasi : A turning point that added a two‑step test
Ziglar v. Abbasi significantly limited Bivens by adopting a framework that asks first whether a suit arises in a new Bivens “context” and second whether “special factors” counsel hesitation in creating a damages remedy—effectively instructing courts to decline extensions unless a case closely mirrors Bivens, Davis, or Carlson [5] [3].
5. Egbert v. Boule : The Court refuses further extensions and brands Bivens creation “disfavored”
In Egbert (often styled Boule v. Egbert in reporting) the Court reversed a Ninth Circuit ruling and reiterated that recognizing new Bivens claims is a “disfavored judicial activity,” holding that most claims that are not materially indistinguishable from the trio will not receive damages remedies and signaling continued reluctance to expand Bivens [6] [2].
6. Related immunity and remedial limits: parallel precedents that constrain Bivens' reach
Separate Supreme Court rulings have insulated certain officials from damages and limited remedies against federal entities—Nixon v. Fitzgerald granted absolute presidential immunity and FDIC v. Meyer foreclosed Bivens suits directly against federal agencies—further narrowing paths for plaintiffs seeking constitutional damages [11] [12].
7. Competing narratives and hidden agendas in the debate over Bivens
Advocates for victims argue that Bivens is indispensable because Congress has left gaps in remedies, while defenders of judicial restraint contend that damages causes of action implicate separation‑of‑powers and are better crafted by Congress; commentators and law schools frame the Court’s posture as either necessary restraint or judicial abdication, and recent opinions (and Justice concurrences) reveal an agenda to return remedial design to the political branches [9] [4] [6].
8. Practical effect: Bivens today is exceptional, not ordinary
The practical consequence is that courts now treat Bivens as limited to the three established contexts and will dismiss or deem “new contexts” nonactionable unless Congress has failed to provide an alternate remedial scheme and the facts closely parallel the historic trio—making successful federal‑official damages suits uncommon [2] [3] [5].