Egbert v. Boule

JUSTICE GORSUCH, concurring in the judgment.¶

Our Constitution’s separation of powers prohibits federal courts from assuming legislative authority. As the Court today acknowledges, Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388 (1971), crossed that line by “impl[ying]” a new set of private rights and liabilities Congress never ordained. Ante , at 5–6; see also Alexander v. Sandoval , 532 U. S. 275, 286 (2001); Nestlé USA, Inc. v. Doe , 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 4–7).¶

Recognizing its misstep, this Court has struggled for decades to find its way back. Initially, the Court told lower courts to follow a “two ste[p]” inquiry before applying Bivens to any new situation. Ante , at 7. At the first step, a court had to ask whether the case before it presented a “new context” meaningfully different from Bivens . Ante , at 7. At the second, a court had to consider whether ''special factors'' counseled hesitation before recognizing a new cause of action. Ibid. But these tests soon produced their own set of questions: What distinguishes the first step from the second? What makes a context “new” or a factor “special”? And, most fundamentally, on what authority may courts recognize new causes of action even under these standards?¶

Today, the Court helpfully answers some of these lingering questions. It recognizes that our two-step inquiry really boils down to a “single question”: Is there “any reason to think Congress might be better equipped” than a court to ''weigh the costs and benefits of allowing a damages action to proceed''? Ante , at 7–8; see Ziglar v. Abbasi , 582 U. S. 120, ___–___ (2017) (slip op., at 13–14). But, respectfully, resolving that much only serves to highlight the larger remaining question: When might a court ever be “better equipped” than the people’s elected representatives to weigh the “costs and benefits” of creating a cause of action?¶

It seems to me that to ask the question is to answer it. To create a new cause of action is to assign new private rights and liabilities—a power that is in every meaningful sense an act of legislation. See Sandoval , 532 U. S., at 286–287; Nestlé , 593 U. S., at ___ (GORSUCH, J., concurring) (slip op., at 5); Jesner v. Arab Bank, PLC , 584 U. S. ___, ___ (2018) (GORSUCH, J., concurring in part and concurring in judgment) (slip op., at 3). If exercising that sort of authority may once have been a ''proper function for common-law courts'' in England, it is no longer generally appropriate ''for federal tribunals'' in a republic where the people elect representatives to make the rules that govern them. Sandoval , 532 U. S., at 287. Weighing the costs and benefits of new laws is the bread and butter of legislative committees. It has no place in federal courts charged with deciding cases and controversies under existing law.¶

Instead of saying as much explicitly, however, the Court proceeds on to conduct a case-specific analysis. And there I confess difficulties. The plaintiff is an American citizen who argues that a federal law enforcement officer violated the Fourth Amendment in searching the curtilage of his home. Candidly, I struggle to see how this set of facts differs meaningfully from those in Bivens itself. To be sure, as the Court emphasizes, the episode here took place near an international border and the officer’s search focused on violations of the immigration laws. But why does that matter? The Court suggests that Fourth Amendment violations matter less in this context because of “likely” national-security risks. Ante , at 11–12. So once more, we tote up for ourselves the costs and benefits of a private right of action in this or that setting and reach a legislative judgment. To atone for Bivens , it seems we continue repeating its most basic mistake.¶

Of course, the Court’s real messages run deeper than its case-specific analysis. If the costs and benefits do not justify a new Bivens action on facts so analogous to Bivens itself, it’s hard to see how they ever could. And if the only question is whether a court is “better equipped” than Congress to weigh the value of a new cause of action, surely the right answer will always be no. Doubtless, these are the lessons the Court seeks to convey. I would only take the next step and acknowledge explicitly what the Court leaves barely implicit. Sometimes, it seems, “this Court leaves a door ajar and holds out the possibility that someone, someday might walk through it” even as it devises a rule that ensures “no one . . . ever will.” Edwards v. Vannoy , 593 U. S. ___, ___ (2021) (GORSUCH, J., concurring) (slip op., at 1). In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope, and in the process invite still more “protracted litigation destined to yield nothing.” Nestlé , 593 U. S., at ___ (GORSUCH, J., concurring) (slip op., at 7). Instead, we should exercise “the truer modesty of ceding an ill-gotten gain,” ibid. , and forthrightly return the power to create new causes of action to the people’s representatives in Congress.¶