While this is by no means the first time I'll say this, it may well be the only time I'm glad of the fact: The Supreme Court is our national house of worship. This morning I'm oddly comforted by the quiet grandeur of the black robes and the dozen small rites and rituals, all performed exactly as they were last spring. I'm not just high after this Summer of Exegesis (in which every murmur of every justice to any schoolboy was deconstructed for jurisprudential implications). No, there is genuine solace in the fact that when Chief Justice Rehnquist speaks the formula for opening the new term, it feels, well, almost like praying.
That and we are praying. The front page of today's Washington Post warns of more attacks—the biological kind. Sitting in the press gallery, I realize that in light of this new world of fear we've acquired, all the marble and curtain and stone around me are not much more substantial than my notepad. There's extra security and an extra metal detector to pass this morning, but there are no lines outside the court today, and the plaza outside is deserted. When the brand new marshal of the court—the first she-marshal in history—recites the familiar: "God bless the United States of America and this honorable court," I actually blurt out "Amen." Chief Justice Rehnquist opens with a request that we "take a moment to recognize the terrible loss caused by the terrorist attacks." He offers Solicitor General Ted Olson, seated up front, condolences on the loss of his wife. Then he asks that we "take a moment to grieve with those who mourn, and honor those who have heroically performed their duty."
(On appeal before the high court this term is a mandatory moment of silence in the Virginia public schools—in which students are required "to meditate, pray or engage in any other silent activity." The chief thus asks us to just grieve and honor rather than pray. We won't know until they take the Virginia case, whether he can also ask us to pray.) (Amen.)
Today's oral argument offers much in the way of silent prayer and meditation, which mostly takes the form of my own pleas to the heavens to please make this case less complicated. No such luck. The case, Correctional Services Corp. v. Malesko, was hatched in the murky netherworld among sovereign immunity, Section 1,983 of the Civil Rights Act, state tort law, and that jazzy little legal number known as a Bivens action.
Wait. Come back.
The government contracts out its prison duties to a private, for-profit McPrison run by Correctional Services Corp. Inmate John Malesko, serving time for federal securities fraud, is diagnosed with congestive heart failure and midway through his 18-month sentence is moved to a private halfway house, known as "Le Marquis" (as in De Sade?), which is owned by CSC. Now, CSC (formerly Esmor) has its issues. Like a riot in 1995 over intolerable living conditions in its immigration jail in New Jersey. And bare cupboards and a short staff in Le Marquis. So when Malesko is made by some brutish guard to run up five flights of stairs instead of being allowed to use the McElevator, he suffers a heart attack. Cruel and unusual, right? Throw the book at the McBastards.
But here's where Malesko's troubles begin. He waits three years and sues CSC in federal court. He fails to name the guard who bullied him, and it is now too late for him to do so. As will become clear at oral argument, had Malesko done anything right in bringing this case, he'd have an ATM card that only works in the Caymans today. As Justice Scalia will point out, he could, for instance, have sued for big punitive damages in state court. He could have also named the correct prison guard in a timely fashion with a federal claim. Instead, Malesko (and his able attorney, um, himself) brought a federal constitutional claim in federal court.
Here's where you might want to go fix yourself a sandwich: Under Section 1,983 of the Civil Rights Act, Congress lets you sue when state actors violate your constitutional rights while acting under the color of law. You didn't have a corresponding right to sue a federal employee for violating your constitutional rights until the Supreme Court decided Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics in 1971. Bivens allowed people whose rights were violated by federal agents to recover damages. But Bivens has never been extended to allow suit against anyone but the individual agent who violated your rights. In fact, one of the main rationales behind allowing you to sue the individual agent who hurt you was to deter cowboy agents by making them personally liable. So Malesko, by bringing a Bivens action against a whole prison company—as opposed to an individual guard—is resting on a tricky Catch-22. He has to argue that private prisons are enough like prisons to be performing "core governmental functions" so he can sue under Bivens but also that they are different enough from government-run prisons so he can sue the whole company rather than just an individual. Good thing he finally hired a lawyer …
Justices O'Connor and Kennedy, who have enjoyed the most press coverage this summer, fire off the first and second questions, respectively. They try to get Carter Phillips, the prison's lawyer, to concede that there would have been a valid Bivens claim against the guard who made Malesko do windsprints up the stairs. Phillips sort of half-concedes the point, which leads Scalia to open the term with one of his non-interrogatory types of discursive questions. "I wish someone were here arguing in favor of the employee. ... Isn't there a reason to say the employee is not liable?" Couldn't you just hug him?
One thing Phillips does that is either genius lawyering or unmitigated sass involves laying out for each justice what he calls the "flaw in your theory." He tells each of Justices Souter, Breyer, and Ginsburg exactly how they misapprehend the case law. He argues that it's Congress' job to figure out how to deter misconduct and that adequate protections already exist to protect individuals in Malesko's situation, without broadening Bivens liability to private companies.
Jeffrey A. Lamken argues for the solicitor general and speaks so quickly, you might think he's trying to beat out some statute of limitations in some other case he's racing off to file. He echoes Phillips' arguments against extension of Bivens to private jails, because it's for Congress to legislate, and it's for Congress to spend the Treasury's money defending lawsuits.
Steven Pasternak argues for Malesko, and because he's late to the party, he has a bit of a time explaining why his client didn't leave himself any remedy other than this tortured Bivens action. The justices hammer him on why his client isn't adequately protected with a state negligence claim and what precisely the prison "policy" was that required his client to run up five flights of stairs. Also, they wonder why if his client has a constitutional claim, it's never been pleaded anyplace. Pasternak takes so long to answer some of these questions that one truly believes he is praying. The heavenly chorus seems to tell him to repeat that for-profit corporations have a fiduciary duty to their shareholders, and thus cannot be deterred from misconduct unless you open them to suit. And he does at least four uninterrupted minutes on burden shifting in the insurance industry, which leaves the bench glassy-eyed.
Before I leave you in the same state, it's worth bringing your attention to today's terse little order suspending Bill Clinton Esq. from arguing before the Supreme Court (you'll want to scroll down to Page 87). Which means that those of you who'd hoped to someday see attorney Bill Clinton and Justice Clarence Thomas going head to head on what sexual harassment is should probably find something new to pray for.