Hernandez, Bivens, and the Supreme Court’s Expanding Theory of Judicial Abdication

Abstract

This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandez involved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that examines whether a constitutional right is fundamental to our scheme of ordered liberty and has deep roots in our history and tradition. This Essay proposes that a similar methodology be used to assess whether a civil remedy exists for violations of constitutional rights by federal officials.