Correctional Services Corporation v. Malesko/Concurrence Scalia

Justice Scalia, with whom Justice Thomas joins, concurring.

I join the opinion of the Court because I agree that a narrow interpretation of the rationale of ''Bivens v. Six Unknown Fed. Narcotics Agents'', 403 U.S. 388 (1971), would not logically produce its application to the circumstances of this case. The dissent is doubtless correct that a broad interpretation of its rationale would logically produce such application, but I am not inclined (and the Court has not been inclined) to construe Bivens broadly.

In joining the Court’s opinion, however, I do not mean to imply that, if the narrowest rationale of Bivens did apply to a new context, I would extend its holding. I would not. Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action–decreeing them to be “implied” by the mere existence of a statutory or constitutional prohibition. As the Court points out, ante, at 5, and n. 3, we have abandoned that power to invent “implications” in the statutory field, see Alexander v. Sandoval, 532 U.S. 275, 287 (2001). There is even greater reason to abandon it in the constitutional field, since an “implication” imagined in the Constitution can presumably not even be repudiated by Congress. I would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980)) to the precise circumstances that they involved.