Supreme Court October Term 2016: A Review of Select Major Rulings
Released: 2017-09-15T00:00:00

T he Supreme Court term that began on October 3, 2016, was notably different from recent terms at the High Court. Perhaps most conspicuously, the October 2016 term was the first term in three decades to begin without Justice Antonin Scalia on the Court. Justice Scalia, who died midway through the previous term, had a significant influence on the law in his nearly thirty-year career on the bench, and his colleagues noted his absence in several tributes to the late Justice in the year that followed. Moreover, because Justice Scalia's eventual successor was not seated until the end of the October 2016 term, the Court's most recent term was the first since 1987 to commence with a Court composed of fewer than nine active Justices. And, with the appointment and confirmation of Justice Neil Gorsuch to the Supreme Court in April 2017, the October 2016 term was also notable in that it marked the first term since 2010 in which a new Justice joined the High Court.

Court observers have suggested that the lack of a fully staffed Supreme Court for the bulk of the last term likely had an impact on the Court's work. The Court issued seventy written opinions during the October 2016 term and heard oral arguments in sixty-four cases. These numbers constitute the lightest docket for the Court since at least the Civil War era. Beyond the volume of the Court's workload, the overall nature of cases on its docket appeared relatively less high profile than in prior terms. During the 2014 and 2015 terms, for example, the Supreme Court issued major rulings on often-contentious issues like same-sex marriage, affirmative action, and abortion. A number of legal commentators have noted that, in contrast, the October 2016 term simply did not include any cases that would tend to generate a comparable level of interest from the general public , notwithstanding potential opportunities for the High Court to rule on such cases. Perhaps because of the recent composition of the Court and the nature of its docket, the latest term witnessed the issuance of a notable number of unanimous opinions. In fact, all of the Justices agreed on the final judgment of the Court in 59% of the opinions issued during the October 2016 term, a feat surpassed only one other time during the Roberts Court era—the October 2013 term (when the Court unanimously agreed on a final judgment in 66% of cases).

Notwithstanding the volume and nature of the docket for its most recent term, the October 2016 term featured consideration of numerous cases on matters of potential significance to Congress's work, especially in several discrete areas of law. Of note, of the seventy opinions issued during the last term, more than 10% were on matters related to intellectual property law. The Court also considered cases involving criminal law and procedure, including several cases touching on racial bias issues in the criminal justice system. And the Court rendered three potentially important rulings related to the legal standards for determining whether race impermissibly predominates a state legislature's redistricting decisions.

While a full discussion of every ruling from the last Supreme Court term is beyond the scope of this report, Table 1 provides brief summaries of the Court's written opinions issued during the October 2016 term. The bulk of this report highlights four particularly notable cases the Court heard and ruled on during the October 2016 term: (1) Matal v. Tam , which examines the interplay between the First Amendment and trademark law; (2) Sessions v. Morales -Santana , a case exploring the relationship between immigration law and the Court's Equal Protection jurisprudence; (3) Trinity Lutheran Church of Columbia, Inc. v. Comer , the latest chapter in the Court's Free Exercise jurisprudence; and (4) Ziglar v. Abbasi , a case limiting the types of damages claims that can be asserted against federal officers for alleged constitutional violations under the Bivens doctrine. Each case is addressed in a separate section below, which (1) provides background information on the case; (2) summarizes the arguments that were presented to the Court; (3) explains the Court's ultimate ruling; and (4) examines the implications that the Court's ruling could have for Congress, including broader ramifications for jurisprudence in a given area of law.

Trademarks and Free Speech: Matal v. Tam

Matal v. Tam (formerly Lee v. Tam ) involved a dispute at the intersection of First Amendment and trademark law. According to the Supreme Court's opinion in Tam , a federal law prohibiting the registration of trademarks that "may disparage" any "persons, living or dead" violates the Free Speech Clause of the First Amendment. While Tam involved the U.S. Patent and Trademark Office's (PTO's) refusal to register the mark "THE SLANTS" on the grounds that it may be disparaging to Asian Americans, the decision has broader implications for trademark law as well as the Court's free speech jurisprudence.

The Lanham Act specifies the various requirements for registering a trademark. Section 2(a) prohibits the registration of a mark that "[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." To make this determination, the PTO considered the content of the trademark, "the likely meaning of the matter in question," and, if the meaning of the mark "is found to refer to identifiable persons, whether that meaning may be disparaging to a substantial composite of the referenced group."

The circumstances underlying the Tam litigation began in 2006, when Simon Tam started an Asian American dance-rock band called "The Slants," a name he selected in an attempt to reclaim or reappropriate Asian stereotypes. In 2011, Tam sought to register the mark "THE SLANTS," but the PTO denied the application on disparagement grounds. Tam appealed the PTO's rejection to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). While a three-judge panel affirmed the PTO's disparagement determination and rejected Tam's constitutional challenge on First Amendment grounds as "foreclosed by our precedent," the court sitting en banc subsequently held, "[t]he government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional." In so holding, the court explicitly overruled long-standing circuit precedent.

The Supreme Court granted certiorari and heard arguments on January 18, 2017. The sole question before the Court was whether the disparagement provision is facially invalid under the First Amendment. The PTO raised three arguments in defense of the disparagement clause: (1) trademarks are not private speech, but are instead the speech of the government (i.e., government speech) that the Court has recognized can favor a particular viewpoint; (2) trademarks are government-subsidized speech for which the government can make content-based distinctions; and (3) the disparagement clause "simply defines the criteria for participation in the government's voluntary trademark-registration program" for which it "has significant discretion" to determine the criteria for inclusion. In the alternative, the PTO argued that, if trademarks are not government speech, they are merely commercial speech.

For his part, Tam argued that the disparagement clause violates the First Amendment "because it imposes a significant viewpoint-based burden on speech." To Tam, the clause "permits the registration of marks that express a positive or neutral view of a person, but bars the registration of marks that express a negative view." Furthermore, Tam asserted that "[t]he denial of registration is a serious burden" because those trademark applicants whose viewpoint is not approved by the PTO are denied the benefits of trademark registration.

The Supreme Court's opinion in Tam , authored by Justice Alito, held that the disparagement provision violates the Free Speech Clause because "[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend." Elaborating on this point in a later part of his opinion, Justice Alito (on behalf of four Justices) remarked that the disparagement clause "evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue." However, Justice Alito concluded, "in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint."

In concluding that the disparagement provision violated the First Amendment, the Court held that it was "far-fetched to suggest that the content of a registered mark is government speech," which is exempt from free speech scrutiny under the First Amendment. The Court observed that "[t]he Federal Government does not dream up these marks, and it does not edit marks submitted for registration." Comparing trademarks to monuments donated to a public park (the subject of Pleasant Grove City v. Summum ) and specialty license plates (the subject of Walker v. Texas Division, Sons of Confederate Veterans, Inc. ), both of which have been held to be government speech, the Court held that trademarks constitute private speech because (1) they do not have a history of use by the government to convey messages to the public; (2) the government does not maintain direct control over the messages conveyed; and (3) the public does not "associate[] the contents of trademarks with the Federal Government." Finally, pointing to a variety of registered trademarks communicating a range of viewpoints and opinions, the Court noted that, if trademarks are considered government speech, "the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public."

Three Justices joined other portions of Justice Alito's opinion examining whether the trademark registration program is akin to a government subsidy for speech for which it can make content-based distinctions (e.g., government funding for the arts), or participation in a government program for which it has discretion to set the criteria for inclusion (e.g., programs that collect union dues for public employee unions ). Justice Alito found that neither analog was appropriate because trademark registration is more comparable to a limited public forum for private speech, wherein the First Amendment prohibits viewpoint-based discrimination. Justice Alito's opinion also considered whether trademarks might constitute commercial speech, subject to a lesser degree of scrutiny, but opined that the disparagement clause fails even under less stringent scrutiny because it was not "narrowly drawn" to serve "a substantial interest." In so doing, Justice Alito noted, "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'"

Three Justices joined Justice Kennedy's concurring opinion, which agreed with the opinion of the Court to the extent it suggested that the disparagement clause amounts to unconstitutional viewpoint discrimination. For Justice Kennedy, however, this ultimate outcome "render[ed] unnecessary any extended treatment of other questions raised by the parties" (i.e., the government subsidy, government program, and commercial speech arguments). Justice Thomas filed a separate concurring opinion arguing that the regulation of commercial speech to suppress truthful ideas should be subject to strict scrutiny.

The Supreme Court's decision in Tam has consequences for other pending cases, such as Pro-Football, Inc. v. Blackhorse , a case challenging the PTO's cancellation of the "REDSKINS" trademarks as disparaging to Native Americans. In Pro-Football , the district court upheld the cancellations against a First Amendment challenge almost identical to Tam's, concluding that "the federal trademark program is government speech under the Supreme Court's analysis in Walker ." While on appeal to the Fourth Circuit, Pro-Football filed a petition for a writ of certiorari before judgment to the Supreme Court, which would have allowed the case to be heard alongside Tam , but the petition was denied. On June 21, 2017, Pro-Football submitted the Tam opinion to the Fourth Circuit and requested that judgment be entered in its favor, after which the court requested the parties' positions as to whether oral argument on this request was necessary. In response, all parties conceded that Tam controls the Pro-Football case and consented to the court's entering of judgment in favor of Pro-Football.

The Tam decision will also likely have consequences for the trademark regime as a whole. The Lanham Act contains other content-based restrictions, such as those prohibiting "immoral" and "scandalous" marks. As the Federal Circuit recognized, "other portions of [the Act] may likewise constitute government regulation of expression based on message," and the Supreme Court's holding in Tam appears to solidify this conclusion. In this vein, the Court's opinion in Tam will affect other cases, such as In re Brunetti , a case pending before the Federal Circuit involving a challenge to the PTO's rejection of an application for the trademark "FUCT" as scandalous and immoral. On June 20, 2017, the Federal Circuit requested briefing addressing (1) "the impact of the Supreme Court's Tam decision on Mr. Brunetti's case," and (2) "whether there is any basis for treating immoral and scandalous marks differently than disparaging marks in light of the Supreme Court's unanimous holding that 'offensive' trademarks cannot be banned." Arguing that Tam is outcome determinative, Brunetti responded that "there is no difference between the Disparagement Clause and the Scandalous Clause." The PTO, however, relying heavily on Justice Kennedy's concurring opinion in Tam , countered that Tam struck down the disparagement provision on the basis of viewpoint discrimination and, unlike the disparagement provision, the prohibition on scandalous marks is viewpoint neutral. Oral argument occurred on August 29, 2017, and the case is currently under consideration by the Federal Circuit.

The Court's opinion in Tam also has implications for free speech law more generally. While the Court in Tam made it clear that "[t]rademarks are private, not government, speech," it also cautioned against the "dangerous extension of the government-speech doctrine." The Court pointed to copyright registration as "[p]erhaps the most worrisome implication" of extending the government speech doctrine. The PTO attempted to distinguish the copyright system from the trademark regime, stating that while copyright is "the engine of free expression," "trademarks are source identifiers in commerce that are not inherently expressive." That is, "[w]hile some trademarks have incidental expressive meaning, the essential function of a trademark is to identify and distinguish the source of goods or services in commerce." The Court, unpersuaded by this argument, stated, "[i]f private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints."

As noted, the Court also distinguished trademarks from the specialty license plates at issue in Walker v. Texas Division, Sons of Confederate Veterans . In that case, the Court ruled that license plates constituted government speech and upheld Texas's refusal to permit a Confederate-flag design on a license plate because the design "might be offensive to ... the public." In Tam , the Court stated that Walker "likely marks the outer bounds of the government-speech doctrine." Thus, Tam may signal that the factors from Walker that inform whether expression is government speech (i.e., whether there is a history of the government using a specific form of speech to convey messages to the public; whether the government maintains direct control over the messages conveyed; and whether the public closely identifies a form of speech with the government), originally articulated in a case involving monuments in a public park, will be analyzed narrowly in future cases. The Court's apparent reluctance to expand the government speech doctrine suggests limits to what the Court described as an "essential" doctrine that is "susceptible to dangerous misuse."

Finally, Tam continues a recent trend of the Court to afford fairly broad First Amendment protection for speech in the commercial context. Three Justices joined the portion of Justice Alito's opinion that considered whether trademarks constitute commercial speech, but opined that the disparagement provision would fail even under less stringent scrutiny as has been applied to commercial speech in prior cases. Notably, in his concurring opinion (also joined by three Justices), Justice Kennedy noted that "[c]ommercial speech is no exception" to the rule that viewpoint discrimination requires heightened scrutiny. Justice Kennedy reasoned that, "[u]nlike content based discrimination, discrimination based on viewpoint, including a regulation that targets speech for its offensiveness, remains of serious concern in the commercial context. To the extent trademarks qualify as commercial speech, they are an example of why that term or category does not serve as a blanket exemption from the First Amendment's requirement of viewpoint neutrality." In his concurring opinion, Justice Thomas maintained his long-standing position that any restriction on truthful commercial speech should be subject to strict scrutiny. As a result, the Court in Tam seems to view the commercial speech doctrine as largely irrelevant to the result in this case, a view that aligns with other recent Court decisions involving commercial speech.

Immigration and Gender Discrimination: Sessions v. Morales-Santana

Among the cases decided last term, Session v. Morales-Santana potentially has the most consequential implications for future judicial review of immigration and citizenship matters. The Supreme Court has repeatedly characterized Congress's authority over immigration as plenary, and the judiciary has employed a highly deferential standard of review to federal immigration laws. In Morales-Santana , however, the Court ruled that a gender-based distinction in the derivative citizenship rules—under which persons born abroad to a U.S. parent may have U.S. citizenship automatically conferred at birth—violated equal protection requirements. In doing so, the Court held that gender-based distinctions in laws governing the acquisition of U.S. citizenship trigger a more "exacting standard of review" than do gender-based distinctions in laws governing the entry or exclusion of non-U.S. nationals (aliens).

The Morales-Santana case concerned provisions in the Immigration and Nationality Act (INA) specifying when a child born abroad to a U.S. citizen and an alien shall be granted U.S. citizenship at birth. Although the specific eligibility requirements for derivative citizenship in such circumstances have been amended over the years, the requirements have consistently differed based on the gender of the U.S.-citizen parent. Morales-Santana focused on one key difference: the default rule is that a U.S.-citizen parent must have been physically present in the United States (or its outer possessions) for a multiyear period prior to the birth of his or her child abroad to transmit citizenship, but an unmarried U.S. citizen-mother need only have been continuously present for one year prior to the birth of her child.

Morales-Santana involved a constitutional challenge to these differing physical presence requirements. Luis Ramón Morales-Santana was born abroad and out of wedlock to a U.S.-citizen father and an alien mother. He moved to the United States at thirteen, but decades later he was placed in alien removal proceedings based on his criminal conduct. As a defense, Morales-Santana argued that he was a U.S. citizen. Although his U.S.-citizen father did not satisfy the physical presence requirements necessary to transmit citizenship under the existing INA rules, citizenship would have been conferred to a similarly situated individual born to an unwed U.S.-citizen mother under the applicable standard. Morales-Santana claimed that the differing standards violated his (now-deceased) father's constitutional right to equal protection. The U.S. Court of Appeals for the Second Circuit (Second Circuit) agreed and further ruled that, as a remedy, the one-year physical presence requirement applicable to unwed U.S.-citizen mothers should also apply to unwed U.S.-citizen fathers.

The Supreme Court, in an opinion authored by Justice Ginsburg, agreed with the Second Circuit's conclusion that the gender-based distinction between the physical presence requirements applicable to unwed U.S.-citizen parents violated the equal protection component of the Fifth Amendment's Due Process Clause. Applying the "exceedingly persuasive justification" test typically used to review gender-based distinctions by the government, the Court rejected the government's argument that the "gender-based differential ensures that a child born abroad has a connection to the United States ... to warrant conferral of citizenship at birth." The Court characterized this argument as an "anachronistic" assumption that "unwed fathers care little about, indeed are strangers, to their children," and thus need stronger ties to the United States to compete with the alien mother's ties to her own country. The Court likewise found that the government provided insufficient evidence to base its claim that the differentiation between children of unwed U.S.-citizen mothers and U.S.-citizen fathers was premised on a special concern that children with a U.S.-citizen mother and alien father risked being rendered "stateless" (i.e., without citizenship to any country).

While six Justices on the Court agreed that an equal protection violation had occurred, all eight Justices who considered the case (Justice Gorsuch did not participate) agreed that the remedy crafted by the Second Circuit was inappropriate. The Court reasoned that extending the one-year physical presence rule to unwed U.S.-citizen fathers would run counter to Congress's intentions when it established this statutory scheme. Because of the interplay of different INA provisions, the Second Circuit's remedy would result in more rigorous physical presence requirements for a married U.S. citizen than a similarly situated unmarried U.S. citizen. As a result, the Court held that the longer physical presence requirement for unwed U.S.-citizen fathers should also be applied prospectively to unwed U.S.-citizen mothers, as this remedy was what "Congress likely would have chosen had it been apprised of the constitutional infirmity." Thus, while the Court found that a physical presence requirement for derivative citizenship violated equal protection, the Court did not alter the requirements applicable to Morales-Santana's father. Consequently, Morales-Santana's status as an alien subject to removal remained unchanged.

While the Court's ruling did not affect Morales-Santana's citizenship status, the decision appears to constrain Congress's ability to make gender-based distinctions when crafting derivative citizenship statutes. The Court had previously upheld the INA's paternal-acknowledgment requirements as a permissible gender-based distinction in the conferral of derivative citizenship; the Morales-Santana majority viewed the statute's physical presence requirements as meaningfully different. Unlike paternal-acknowledgment requirements, the lengthier physical presence requirements for unwed U.S.-citizen fathers at issue in Morales-Santana did nothing to demonstrate the parent's ties to the child and also placed more than a "minimal" burden on the affected parent. Moreover, whereas earlier Court opinions had reached no clear view on the appropriate standard of review for gender-based distinctions made by citizenship rules, Morales-Santana indicates that the same level of heightened scrutiny applicable to the review of other gender-based classifications will be employed to the review of derivative citizenship claims.

More broadly, some observers have speculated that the decision may signal that judicial deference toward Congress's authority over immigration is waning. Notwithstanding the Court's long-standing deference to Congress on immigration matters, the Morales-Santana Court reviewed the derivative citizen statute's gender-based distinctions in the same manner as employed in nonimmigration contexts. Indeed, the Morales-Santana Court did not believe that Congress's plenary authority over immigration was controlling in the case before it. Though such authority had led the Court earlier to uphold gender-based distinctions in the context of alien admission preferences, the Morales-Santana majority averred that heightened scrutiny is required when gender-based distinctions involve citizenship issues rather than the entry or exclusion of aliens.

Religious Freedom: Trinity Lutheran Church of Columbia, Inc. v. Comer

In its final decision of the term, the Supreme Court decided Trinity Lutheran Church of Columbia, Inc. v. Comer , a case examining the constitutionality of a state policy that prohibited the distribution of public funds to religious entities. The Court held that a church preschool and day care center cannot be disqualified from participating in a state program that offered funding for resurfacing of playgrounds because of the center's religious affiliation. While the case had been of particular interest to legal scholars anticipating that newly confirmed Justice Neil Gorsuch might provide the deciding vote, the Court ultimately voted 7-2 in the church's favor, with the majority of Justices viewing the state's action as government discrimination based on the religious status of the grant applicant in violation of the federal Free Exercise Clause.

Trinity Lutheran centered on a challenge to a program administered by Missouri's Department of Natural Resources (DNR) that reimburses eligible nonprofit organizations that install playground surfaces made from recycled tires. The program awards grants to applicants on a competitive basis, but, at the time the lawsuit commenced, the program barred participation by applicants that were owned or controlled by a religious entity. The state justified its policy of precluding religious applicants by citing a Missouri constitutional provision that bars public funds from being used to aid religious institutions. As a result, despite ranking the church among the top applicants, DNR denied Trinity Lutheran Church's grant application for resurfacing of a playground at its preschool and day care center.

The church challenged the decision, alleging discrimination based on its religious identity in violation of the federal Free Exercise Clause, which bars laws and policies "prohibiting the free exercise [of religion]." The church argued that categorical exclusion of religious organizations from participation in a public program was incompatible with the Free Exercise Clause's guarantees. In response, Missouri characterized the church's argument as requiring the state to go beyond the guarantees of the Free Exercise Clause, which "does not guarantee churches opportunities for public financing." According to the state, its policy "places no meaningful restraint on Trinity Lutheran's ability to freely exercise its religion" and ensures that the state would not be required "to subsidize" the activities of a church. While Missouri cited a state constitutional provision restricting the distribution of public funds to aid religious entities, a stronger antiestablishment standard than the federal Establishment Clause, both parties agreed that the case did not present questions under the federal Establishment Clause.

The Supreme Court ultimately was persuaded by the arguments of the church, holding that religious entities could not be barred from availing themselves of opportunities for the resurfacing grants simply because of their religious identity. The Court based its opinion on the First Amendment's general prohibition on government interference with the "free exercise" of religion by its citizens. Under the Free Exercise Clause, while neutral laws of general applicability that incidentally burden a person's free exercise rights are reviewed under a less demanding rubric, laws that "single out the religious for disfavored treatment" generally do not survive constitutional challenge. In this vein, the Court has subjected "laws that target the religious for 'special disabilities' based on their 'religious status' [to the strictest scrutiny]." In particular, the Trinity Lutheran Court explained that laws conditioning the opportunity to seek generally available benefits on one's religious status are subject to heightened scrutiny under the Free Exercise Clause.

Because Missouri's program "expressly discriminate[d] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character," the Court held that the state had violated the Free Exercise Clause. It rejected the state's characterization that its policy did not prohibit religious practice but rather "simply declined to allocate ... a subsidy the State had no obligation to provide in the first place." Although the Court acknowledged that the policy did not criminalize behavior or otherwise proscribe beliefs, it concluded that the policy effectively forced the church to choose between its religious identity and its eligibility to participate in a public benefits program. Considering whether Missouri had a sufficient interest to justify what the Court deemed to be a "discriminatory policy," the Court explained that the state's interest in promoting the separation of church and state beyond what the federal Constitution requires through limitations on funding to religious entities was not compelling enough to justify "the clear infringement on free exercise before us."

The outstanding question from Trinity Lutheran is the reach of the Court's decision. A large majority of states have adopted similar constitutional provisions (sometimes referred to as "Blaine Amendments") that broadly prohibit public funds from being directed to religious entities—a stricter limitation than the federal Establishment Clause. The impact of Trinity Lutheran on these laws has been debated, largely because of "Footnote 3" in Chief Justice Roberts's opinion, which did not command a majority of the Court and two concurring Justices (Thomas and Gorsuch) expressly did not join. Footnote 3 states that the "case involves express discrimination based on religious identity with respect to playground resurfacing" and "[does] not address religious uses of funding or other forms of discrimination." Justice Gorsuch, joined by Justice Thomas, asserted in a concurring opinion that Footnote 3 should not be read to limit the logic of the Court's opinion only to a limited set of cases, such as those involving playground resurfacing. In dissent, Justice Sotomayor strongly criticized the Court's decision as "all but invalidat[ing]" state Blaine Amendments, asserting that the relationship between church and state is now "profoundly change[d]" because the Court has now viewed the Free Exercise Clause to, at least in some instances, require that public funding be provided to a religious institution. Though the decision's full effect remains unclear, there have been immediate implications in other cases. For example, the Court has remanded a number of other pending cases involving free exercise challenges of public aid that excluded religious schools because of state Blaine Amendments, ordering review in light of Trinity Lutheran .

In addition to the federalism questions and effect of the decision on enforcement of state constitutional provisions, Trinity Lutheran may also have broader implications for government funding programs generally. The Court's decision indicates that a threshold question in analysis for public funding cases is whether eligibility for such funding is conditioned on the recipient's religious status or on how the funding will be used by the recipient. The Court specifically noted that, in Locke v. Davey , it had previously upheld restrictions on the use of public funds for expressly religious purposes, emphasizing that the program at issue in that case "took account of [the state's] antiestablishment interest only after determining that the ... program did not 'require [beneficiaries] to choose between their religious beliefs and receiving a government benefit.'" Thus, Trinity Lutheran appears to allow for the government to deny funding to religious beneficiaries if the funds will be used for religious purposes such as the example in Locke , but prohibits beneficiaries of a government grant from being disqualified as eligible simply because of their religious status. In this vein, the case may offer some clarity to questions that arise in the context of federal programs that allow for the participation of religious organizations in providing secular social services.

Federal Courts and Civil Rights: Ziglar v. Abbasi

In Ziglar v. Abbasi , a consolidated case in which only two-thirds of the bench participated, the Supreme Court, using language that may curb a wide range of damages lawsuits against government actors, ruled 4-2 against extending the judicially created Bivens remedy to certain claims brought by unlawfully present aliens challenging their detention following the September 11, 2001, terror attacks. The central issue in Abbasi was the application of the Supreme Court's 1971 opinion in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics . While 42 U.S.C. § 1983 provides a private damages remedy against individual state officers resulting from violations of the Constitution, Congress has never enacted a comparable statute with respect to federal officers' violations of the Constitution. In Bivens , though, the Court functionally created such a remedy, recognizing a damages action against federal officers as an implied remedy for an illegal search conducted in violation of the Fourth Amendment.

The Bivens remedy has had an inconsistent trajectory at the Supreme Court. In Bivens the Court suggested that a judicially created legal remedy might be inappropriate (1) in a case presenting "special factors counselling hesitation in the absence of affirmative action by Congress" or (2) if there exists "an explicit congressional declaration that [the plaintiffs should be] ... remitted to another remedy, equally effective in the view of Congress." Following the general principle that "a federal district court may provide relief in damages for the violation of constitutional rights if there are 'no special factors counselling hesitation in the absence of affirmative action by Congress,'" in the decade that followed Bivens the Court twice extended the remedy to other contexts. First, in Davis v. Passman , the Court held that a Bivens remedy was available for gender discrimination against a public employee in violation of the equal protection component of the Fifth Amendment. Second, in Carlson v. Green , the Court allowed a Bivens claim to proceed for constitutionally inadequate prisoner medical care in violation of the Eighth Amendment.

Beginning in 1983, the Supreme Court began to curb the availability of the Bivens remedy in a series of cases. For example, in Chappell v. Wallace the Court held for the first time that "special factors" counseled against extending the Bivens remedy. Chappell involved a lawsuit filed by Navy enlistees against their superiors. In denying a Bivens remedy, the Court concluded that the "unique disciplinary structure of the Military Establishment and Congress'[s] activity in the field constitute 'special factors' which dictate that it would be inappropriate to provide enlisted military personnel a Bivens- type remedy against their superior officers." That same year, in Bush v. Lucas the Court held that the existence of "an elaborate, comprehensive scheme" to protect the federal workforce counseled against recognizing a Bivens claim in which a civil servant alleged that he had been retaliated against for exercising his First Amendment rights. In the years following Chappell and Bush , the Court, while not overturning Bivens , has declined to extend the remedy first created in 1971 to a host of contexts arising in subsequent cases.

With its 2007 opinion, Wilkie v. Robbins , the Court recognized a two-part framework for determining whether a Bivens remedy should be available. First, the Court asks whether "any alternative, existing process for protecting the [plaintiff's] interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Second, "even in the absence of an alternative," the Court considers whether "any special factors" exist that "counsel[] hesitation before authorizing a new kind of federal litigation." Aside from applying this framework, the Court has increasingly focused its examination on whether to extend the Bivens remedy to "any new context or new category of defendants." This focus has influenced lower courts' consideration of when it is appropriate to recognize a new Bivens remedy. In particular, courts have questioned what constitutes a "new context" for Bivens and what "special factors" would counsel against recognizing a Bivens claim.

The plaintiffs in Abbasi —six unlawfully present men of Arab or South Asian descent, most of whom are Muslim—were detained for months at a federal detention center in New York City shortly after the 9/11 terror attacks. At the time, the Federal Bureau of Investigation (FBI) had been investigating tips of suspected terrorist activity (some more well-grounded than others) and detained aliens "of interest" pursuant to a "hold-until-cleared policy." In other words, certain aliens were detained until the FBI affirmatively cleared them of terrorist ties. According to the plaintiffs' complaint, some detainees, including the plaintiffs, purportedly were subjected to harsh conditions of confinement to pressure them into cooperating. After plaintiffs' release from confinement and removal from the United States, they sued seeking money damages under Bivens for alleged constitutional harms suffered. Specifically, the plaintiffs sought damages for the (1) government's detention policies and (2) resulting conditions of confinement. They brought claims against several high-level government officials and the detention facility's warden and assistant warden, alleging violations of the Fourth and Fifth Amendments. The Second Circuit allowed the claims to proceed under Bivens , and an appeal to the Supreme Court followed.

Before the Supreme Court, the Abbasi plaintiffs argued that their detention policy and conditions-of-confinement claims are cognizable under Bivens . They principally contended that their claims against government actors alleging violations of the substantive and equal protection components of the Due Process Clause of the Fifth Amendment do not extend Bivens to a new context. Because the Supreme Court has already recognized Bivens claims for unconstitutional prison abuse under the Eighth Amendment in Carlson , the plaintiffs argued that "[a] conditions of confinement suit arising under the Due Process Clause is not at some exotic frontier for Bivens litigation." The government countered that the plaintiffs' claims, indeed, sought to extend Bivens to new contexts, and further contended that challenges to high-level policy decisions involving national security and immigration are special factors counseling hesitation against affording a Bivens remedy in this case.

In reversing the Second Circuit, Justice Kennedy, on behalf of the Supreme Court in Abbasi , began the opinion by providing general guidance for courts examining whether to allow a Bivens claim to proceed. Noting that Bivens , Davis , and Carlson "represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself," the majority explained the Court's hesitancy to expand the Bivens remedy further. In particular, Justice Kennedy maintained that it is a "significant step under separation-of-powers principles for a court to determine that it has the authority ... to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation." The Court further noted that "there are a number of economic and governmental concerns" when determining whether to subject government employees to monetary and other liabilities, and Congress is in a "better position" than the Court to resolve those concerns. Positing that "separation-of-powers principles" must be central to a Bivens analysis, the Court concluded that the "answer most often" to the question of "'who should decide' whether to provide for a damages remedy will be Congress."

With this general principle in mind, the majority turned to the questions of (1) what constitutes a "new context" for Bivens and (2) what "special factors" counsel against extending the Bivens remedy to a new context. As to the first question, the Court answered the inquiry narrowly, holding that if a case is "different in a meaningful way" from Bivens, Davis, or Carlson , "then the context is new." According to the Court, meaningful differences may include the constitutional right raised by the suit; the official action at issue; the amount of judicial guidance available for the problem; or the risk of judicial intrusion into the other branches of government, among others. And with respect to what "special factors" might counsel hesitation against judicial intrusion, the Abbasi majority stated that "the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Further, the availability of alternative remedies may also give the judiciary pause. Ultimately, in fairly broad language, the Court concluded that:

if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.

Turning to the Abbasi plaintiffs' challenges to the government's detention policies following 9/11, the Supreme Court concluded that Bivens cannot provide a remedy. The Court first held that the claims lodged against a high-level executive policy in the wake of a major terrorist attack meaningfully differ from the issues in Bivens , Davis , and Carlson , which respectively involved FBI agents handcuffing someone in his home without a warrant, a Congressman firing his female employee, and a prison's failure to treat an inmate's medical condition. Moving on to the special factors analysis, the Court concluded that Bivens is an inappropriate means for challenging a government agency's policy; rather, Bivens is better suited to challenging individual official action. Furthermore, the Court added, other remedies, including injunctive relief, are more appropriate means to challenge "large-scale policy decisions." Additionally, the majority maintained that allowing a suit for damages in Abbasi , which involved an investigation after a major terror attack on U.S. soil, would compel courts to interfere with "sensitive functions of the Executive Branch," including the responsibility to formulate and implement national security policies. And, in the Court's view, a judicial inquiry into national security policy—a field that is the responsibility of Congress and the President—raises separation-of-powers concerns. This concern is particularly pronounced, the Court continued, when the judicial inquiry involves a claim for money damages rather than injunctive relief, as "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis."

As for the Abbasi plaintiffs' conditions-of-confinement claim against the warden and his assistant, the Supreme Court concluded that the plaintiffs indeed were asking for Bivens relief in a new context, but, nevertheless, declined to decide whether "special factors" precluded relief. The Court first compared the conditions-of-confinement claim to the claim at issue in Carlson . Although both cases related to prisoner mistreatment, the Court found small but meaningful differences between the claims. For instance, the conditions-of-confinement claim in Abbasi alleged a violation of the Fifth Amendment, rather than the Eighth Amendment, and thus, in the majority's view, "the judicial guidance available to this warden, with respect to his supervisory duties, was less developed." Next, the Court identified a number of special factors that may discourage extending the Bivens remedy, including potential alternative remedies and Congress's decision not to provide a damages remedy against federal prison officials in the Prison Litigation Reform Act. But the Court stopped short of concluding that those factors were determinative, given that the Second Circuit did not conduct that analysis in the first instance, and the parties did not focus on that analysis in their arguments.

In dissent, Justice Breyer, joined by Justice Ginsburg, contended that the majority improperly characterized the plaintiffs' claims as an extension of Bivens , and thus the Second Circuit's judgment should have been affirmed. Justice Breyer agreed that the constitutional right at issue is germane to a Bivens analysis, but he argued that it is only the substance of the right at issue that matters, not merely the label of the right. Under that view, the dissent reasoned that the Abbasi plaintiffs' claims did not meaningfully differ from other Bivens cases, most notably Carlson . Although brought under different constitutional provisions—one applicable to persons serving a criminal sentence ( Carlson ) and one governing other forms of detention ( Abbasi )—the harms, in Justice Breyer's view, were the same: unconstitutional treatment of the confined.

Abbasi appears to signal an increasingly narrow role for Bivens actions to remedy constitutional violations by federal officers. The majority's reticence concerning the appropriateness of the Bivens remedy, in general, played a large role in the ultimate outcome in Abbasi . For instance, the majority described the era in which Bivens and its progeny were decided as an "ancien regime" in which the Court was more willing to create a judicial remedy when a federally protected right had been invaded, even when Congress had not statutorily provided one expressly. In this vein, the majority opinion echoed a concurrence from Justice Scalia nearly twenty years ago, in which he described Bivens as a "relic of the heady days in which this Court assumed common-law powers to create causes of action" and argued for "limit[ing] Bivens and its two follow-on cases ... to the precise circumstances that they involved." As a result, in Abbasi 's aftermath it may be harder for plaintiffs to argue that a particular case is not an extension of Bivens in closely related, but not identical, constitutional claims. Additionally, the Court appears to be sending a strong message that it will not recognize a money-damages remedy for constitutional harms committed by federal officials if Congress has not created one, placing the primary responsibility for creating such remedies in the political branches. Nonetheless, while Bivens has potentially become a "disfavored" remedy, the Court in Abbasi recognized that Bivens 's protection against unreasonable searches and seizures in violation of the Fourth Amendment is "settled law" that the majority did not intend to disturb. Accordingly, the Bivens actions already recognized by the Court appear to remain viable in their specific contexts.