As promised in my last post, I will now critique the Thomas-Scalia view of Wilkie v. Robbins. The two most conservative Supreme Court justices categorically reject the principle – most clearly established in the 1971 case of Bivens v. Six Unknown Federal Agents – that federal courts may sometimes exercise the power to order the government to pay damages in order to remedy the violation of a constitutional right. As explained in Thomas’ concurring opinion (joined by Scalia):
The Court correctly concludes that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), does not supply a cause of action in this case. I therefore join its opinion. I write separately because I would not extend Bivens even if its reasoning logically applied to this case.