Minneci v. Pollard - 10-1104 (2012)
SUPREME COURT OF THE UNITED STATES
MARGARET MINNECI, et al., PETITIONERS v. RICHARD LEE POLLARD et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[January 10, 2012]
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 cause the holding of that case to apply to the circumstances of this case. Even if the narrowest rationale of Bivens did apply here, however, I would decline to extend its holding. Bivens is “a relic of the heady days in which this Court assumed common-law powers to create causes of action” by constitutional implication. Correctional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (Scalia, J., concurring); see also Wilkie v. Robbins, 551 U. S. 537, 568 (2007) (Thomas, J., concurring). We have abandoned that power in the statutory field, see Alexander v. Sandoval, 532 U. S. 275, 287 (2001) , and we should do the same in the constitutional field, where (presumably) an imagined “implication” cannot even be repudiated by Congress. As I have previously stated, see Malesko, supra, at 75, 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.