U.S. Supreme Court: Uphold in US Matter

The U.S. Supreme Court's recent conference activity, marked by a series of "relisted" cases, signals significant developments in federal remedies and habeas corpus jurisprudence. The Court granted certiorari in *Nielsen v. Watanabe*, a case poised to redefine the scope of *Bivens* implied causes of action, particularly concerning Eighth Amendment claims of deliberate indifference to medical needs by federal prison officials. This decision could lead to a further narrowing or even an outright overruling of the *Bivens* precedent. Concurrently, in *McCarthy v. Hernandez*, the Court issued a summary reversal, reinforcing the stringent limitations of the Antiterrorism and Effective Death Penalty Act (AEDPA) on federal habeas review and clarifying that federal courts cannot extend existing precedents to create new clearly established federal law for state court jury instructions. These actions underscore the Court's ongoing efforts to delineate the boundaries of judicial power in creating remedies and reviewing state convictions.

The U.S. Supreme Court's "relist" practice offers a unique window into the cases that capture the Justices' attention, often signaling complex legal questions or potential shifts in established jurisprudence. As the October Term 2025 draws to a close, the Court's latest conference saw significant movement on several relisted petitions, most notably the grant of review in *Nielsen v. Watanabe* and a summary reversal in *McCarthy v. Hernandez*. These decisions, emerging from the Court's final scheduled conferences, highlight its continued engagement with fundamental questions regarding the availability of remedies for constitutional violations by federal officers and the scope of federal court oversight of state criminal proceedings. For practitioners, these developments are not merely procedural footnotes but harbingers of potentially profound changes in civil rights litigation and post-conviction relief.

The legal landscape surrounding remedies for constitutional violations by federal officers originates from *Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics*, 403 U.S. 388 (1971). In *Bivens*, the Supreme Court recognized an implied cause of action for damages against federal agents for Fourth Amendment violations, even in the absence of a specific statutory authorization. This precedent was subsequently extended to Fifth Amendment gender discrimination claims in *Davis v. Passman*, 442 U.S. 228 (1979), and to Eighth Amendment claims of deliberate indifference to a federal prisoner's medical needs in *Carlson v. Green*, 446 U.S. 14 (1980). However, in recent decades, the Court has expressed increasing reluctance to expand *Bivens* remedies, characterizing them as a "disfavored judicial activity." Decisions like *Ziglar v. Abbasi*, 582 U.S. 120 (2017), and *Egbert v. Boule*, 596 U.S. 482 (2022), have significantly narrowed the scope of *Bivens*, establishing a stringent "new context" inquiry that makes it exceedingly difficult to recognize implied causes of action outside the three original scenarios.

Separately, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes strict limitations on the power of federal courts to grant habeas corpus relief to state prisoners. Under AEDPA, federal courts may only grant relief if a state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." This framework mandates a high degree of deference to state court rulings, preventing federal courts from extending Supreme Court precedents to new contexts or engaging in de novo constitutional review. The Court's use of "relist" status for petitions often indicates that a case presents a novel or complex question that warrants further deliberation among the Justices, frequently preceding a grant of certiorari, a summary disposition, or a dissent from denial.

The Supreme Court's decision to grant certiorari in *Nielsen v. Watanabe*, No. 25-417, on June 22, 2026, places the future of *Bivens* actions squarely before the Justices. The case involves a federal prisoner who alleged deliberate indifference to his medical needs after suffering a fractured coccyx during a prison fight, claiming he was denied hospital care and only given over-the-counter pain medication. The Ninth Circuit, in recognizing a *Bivens* cause of action, determined that the claim was not a "new context" meaningfully different from the Eighth Amendment claim recognized in *Carlson v. Green*. However, the Supreme Court's grant of review, with the question presented as "Whether the Ninth Circuit here erred in recognizing a Bivens cause of action," strongly suggests a re-examination of *Carlson* or the broader *Bivens* framework. Commentators anticipate that this case could provide the Court with an opportunity to further restrict *Bivens* claims, potentially even overruling *Carlson v. Green* or *Bivens* entirely, thereby limiting the ability of individuals to sue federal officials for constitutional violations. The Court is holding *Mohan v. Watkins*, No. 25-952, which presents a similar *Bivens* issue regarding inadequate medical care in federal prison, pending the resolution of *Nielsen v. Watanabe*, underscoring the significance of the upcoming decision.

In a separate but equally impactful move, the Court issued a per curiam summary reversal in *McCarthy v. Hernandez*, 608 U.S. ___ (2026), on June 22, 2026. This case involved Pedro Hernandez, convicted of kidnapping and felony murder in the high-profile Etan Patz disappearance. The U.S. Court of Appeals for the Second Circuit had granted federal habeas relief, concluding that a New York state trial judge's response to a jury question about confessions violated clearly established federal law by failing to instruct the jury on an "attenuation" rule derived from *Missouri v. Seibert*, 542 U.S. 600 (2004). The Supreme Court, however, unequivocally rejected this reasoning, stating that *Seibert* "said nothing about jury instructions." The Court found that the Second Circuit had exceeded its authority under AEDPA, which strictly limits federal habeas review to clearly established federal law as determined by the Supreme Court. This summary reversal serves as a stark reminder to lower federal courts of the narrow scope of habeas review and the prohibition against extending Supreme Court precedents to create new constitutional requirements for state court proceedings, particularly in the context of jury instructions.

The Supreme Court's recent actions, particularly in *Nielsen v. Watanabe* and *McCarthy v. Hernandez*, signal a continued judicial philosophy that favors a restrained approach to federal remedies and habeas relief. For practitioners, the grant of certiorari in *Nielsen* means that the landscape for *Bivens* claims is precarious; attorneys representing plaintiffs alleging constitutional torts against federal officers must prepare for the possibility of a significantly narrowed or even eliminated cause of action. The Court's consistent emphasis on legislative prerogative in creating remedies, as articulated in *Ziglar* and *Egbert*, suggests a high bar for any *Bivens* claim that does not precisely mirror the original three contexts.

Conversely, the summary reversal in *McCarthy* reinforces the strictures of AEDPA, reminding federal habeas practitioners that creative extensions of Supreme Court precedent will likely be met with swift rebuke. The decision underscores the importance of identifying truly "clearly established Federal law" when challenging state court convictions. As the Court prepares for its next term, all eyes will be on *Nielsen v. Watanabe* to see whether the implied constitutional damages remedy, born over half a century ago, will survive in its current form or be relegated to a historical footnote, profoundly impacting civil rights litigation against federal actors.