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. "Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (SCALIA, J., joined by THOMAS, J., concurring). Accordingly, in my view, Bivens and its progeny should belimited "to the precise circumstances that they involved." Malesko, supra, at 75.

Thomas and Scalia believe that Bivens was wrongly decided, and its reach should be limited as much as possible. As I noted in my previous post, the Thomas-Scalia view - unlike Justice Souter's majority opinion - has the virtue of treating property rights the same as other constitutional rights. All will receive the same (sometimes inadequate) level of protection.

But that is about the only virtue of the Thomas-Scalia view. In other respects, it is seriously flawed.

The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution. In some cases, an award of damages is the only adequate remedy available, or even the only possible remedy of any kind. Consider, for example, the case of an innocent man victimized by an unconstitutional search or seizure. The standard remedy of the exclusionary rule is useless to him - at least if he is going to be acquitted anyway. The only feasible way to compensate him for the violation of his rights is an award of damages.

In some cases, other remedies are available, but they are not sufficient to fully remedy the violation of the victim's rights. The Wilkie majority opinion concedes (and Thomas and Scalia do not dispute) that this was true in Wilkie itself. In such situations, it is axiomatic that the courts have a duty to provide a remedy that fully compensates the victim for the violation of his constitutional rights. Any other approach is both unjust to the victim and provides poor incentives for the government by allowing it to avoid bearing the full cost of its actions.

Justices Thomas and Scalia seem to believe that judicial decisions ordering a damages remedy somehow constitute judicial policymaking in a way that decisions ordering other kinds of remedies do not. I agree that damage remedies are sometimes unwise and often inferior to other available remedies. However, I don't see why a damage remedy is inherently more "activist" or more intrusive on the powers of the political branches than alternative remedies such as injunctive relief or facial invalidation of a statute - remedies that Thomas and Scalia consider to be perfectly legitimate. In many cases, an injunction or invalidation of a statute will actually constrain the political branches more than damage payments do.

Some defenders of the Thomas-Scalia position argue that the choice of remedy for rights violations by federal agents should be left up to Congress. If Congress provides an adequate remedy by statute, perhaps the courts should indeed defer to it even if the judges would personally prefer some other remedial scheme. Often, however, Congress will provide either an inadequate remedy or no remedy at all. Congress often cannot be trusted to provide adequate remedies for violations of constitutional rights for exactly the same reasons that it cannot be trusted to refrain from enacting policies that cause rights violations in the first place. The institution of judicial review is necessary precisely because the legislative and executive branches will often be tempted to exceed constitutional limits on their authority. That temptation applies to both rights violations and remedies. Indeed, a legal regime under which the government can get away with refusing to remedy violations of constitutional rights is little different from one without any constitutional limits on government power at all.