Legal Commentary

Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo.

More problematic is that the Court seemingly eliminates supervisory liability (the "term 'supervisory liability' is a misnomer"). That is, at least in Bivens claims and/or claims involving constitutional rights that require intent. Worse, the Court did this despite the issue not being briefed or argued and despite the defendants' stipulation as to the appropriate standard for supervisory liability.

It is unquestioned that there is no respondeat superior liability as to entities or supervisory officials under § 1983 or Bivens (expressly defined in Iqbal as its federal analog); a supervisory officer only can be liable for his own misconduct. But all of the courts of appeals prior to today had recognized (although with varying language and rigidity) that supervisory liability could attach where there was underlying unconstitutional conduct on the ground (whatever the state of mind required for that underlying conduct) and a supervisory official knew about the misconduct and acquiesced in it or condoned it or failed, with deliberate indifference, to take steps to correct or prevent the misconduct.

And this is what Iqbal attempted to plead: That he was detained and mistreated in violation of his First, Fifth, and Eighth Amendment rights by federal officers on the ground and that Ashcroft and Mueller either a) created or implemented the policies pursuant to which they were mistreated or b) knew about the mistreatment. And Mueller and Ashcroft both conceded that they could be liable if they actually knew about underlying constitutional violations and took no steps to halt or correct the misconduct.

Instead, noting that the rights in play (Free Exercise and equal protection) required discriminatory purpose--that the official acted in some way "because of" (rather than "in spite of") the particular trait--the majority insisted that a supervisory official also must have acted with such a discriminatory purpose. The "respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin." So mere knowledge of constitutional violations on the ground and failure to respond to them is not enough; the officer must have failed to respond precisely because the victim was an Arab-Muslim.

Worse, the substantive move was arguably procedurally unnecessary, a point Justice Souter drove home in his dissent. The complaint included allegations (which the plaintiff obviously believed would be legally on point) of knowledge/acquiescence in unconstitutional conduct on the ground, but the Court rejected these allegations as insufficient bare conclusory allegations. The Court thus could have rejected the supervisory-liability claims as insufficiently pled under the expected knowledge/acquiescence standard, without having to change the substantive standard as it did. Put differently, the Court could simply have rejected the supervisory claims as factually insufficient, rather than changing the legal standard to render them legally insufficient. Not to mention that the issue was not raised or briefed.

It will be interesting to see how this issue plays out in the lower courts. The Court spent a lot of time talking about Bivens, so perhaps lower courts will say that the rules for supervisory liability will be different for § 1983 than for Bivens. Alternatively, perhaps (although I doubt there is any principled basis for doing this) lower courts will say that the rules are different for high-ranking federal officials (such as the AG or head of the FBI) than for low- and mid-level supervisory officers who are more aware of what goes on on the ground. Another possibility is that this discussion of supervisory liability applies where the underlying violation is of an intent-based right (such as the First and Fifth Amendments), but knowledge might be sufficient where the underlying violation is of a different right lacking an intent requirement (such as the Fourth or Eighth Amendments). But, of course, the straight-forward reading is there is no longer any such thing as supervisory liability in constitutional cases.