Among the areas that the incoming Democratic congressional majority can focus on is passing a law that would let people sue federal officers for damages for alleged rights violations.

There has long been a gap when it comes to that accountability. The Supreme Court has allowed such suits in the narrowest of circumstances, but the justices are deciding a case this term that could further constrain those claims and even eliminate them. However, the court doesn’t have to have the last word.

The issue was front and center at a hearing Monday in Washington, in a case called Nielsen v. Watanabe. The dispute stems from a civil lawsuit filed by Kekai Watanabe. He alleged that his constitutional rights were violated by medical staff at a Hawaii federal detention center who were deliberately indifferent to his health after he was “brutally assaulted during a gang-related fight,” a federal court recounted.

He brought what is known as a “Bivens” claim, so named for the 1971 Supreme Court precedent that established suits for damages when people allege federal officers violated their rights.

But the court has since read Bivens narrowly. In a 2022 case, the court noted that it has declined to recognize such claims “in all but the most unusual circumstances.” The court said that “prescribing a cause of action is a job for Congress, not the courts.”

Lawyers for federal prison paramedic Francis Nielsen, whom Watanabe said failed to adequately treat him, embraced that approach in urging the justices to overturn Bivens outright (while arguing that Watanabe’s suit should fail either way).

“Leaving Bivens on the books gives plaintiffs false hope, burdens defendants, and deters Congress from exercising its rightful role,” they said in a brief ahead of the hearing. Echoing that sentiment to the justices on Monday, Nielsen’s lawyer, Lucas Walker, said the court should hand responsibility for the matter “back to Congress where it belongs.”

Watanabe’s lawyers recalled that one of the few instances in which the court has allowed a Bivens-type claim to go forward was in a 1980 prison case called Carlson v. Green. In their brief ahead of the hearing, they conceded that the court “has consistently refused to extend Bivens to any new context,” but they stressed that the court has also “repeatedly declined calls to overturn the doctrine entirely.” (Nielsen said the Carlson precedent should be overturned, too.)

How far the court goes in this latest case remains to be seen. The ruling is expected by July, at which point the new Democratic majority in both chambers of Congress will be fully settled in. Whatever the court does, if lawmakers don’t like the status quo, they can make that clear by stepping into the void.

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