Correctional Services Corp. v. Malesko, 534 U.S. 61, 22 (2001)

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82

CORRECTIONAL SERVICES CORP. v. MALESKO

Stevens, J., dissenting

1983 against private corporations exercising "state action"), yet the Court denies such a remedy to that prisoner's federal counterpart. It is true that we have never expressly held that the contours of Bivens and 1983 are identical. The Court, however, has recognized sound jurisprudential reasons for parallelism, as different standards for claims against state and federal actors "would be incongruous and confusing." Butz v. Economou, 438 U. S. 478, 499 (1978) (internal quotation marks omitted); cf. Bolling v. Sharpe, 347 U. S. 497, 500 (1954) ("In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government"). The value of such parallelism was in fact furthered by Meyer, since 1983 would not have provided the plaintiff a remedy had he pressed a similar claim against a state agency.

It is apparent from the Court's critical discussion of the thoughtful opinions of Justice Harlan and his contemporaries, ante, at 66-67, and n. 3, and from its erroneous statement of the question presented by this case as whether Bivens "should be extended" to allow recovery against a private corporation employed as a federal agent, ante, at 63, that the driving force behind the Court's decision is a disagreement with the holding in Bivens itself.10 There are at least two reasons why it is improper for the Court to allow its decision in this case to be influenced by that predisposi-10 See also ante, at 75 (Scalia, J., concurring) (arguing that Bivens is a "relic of . . . heady days" and should be limited, along with Carlson v. Green, 446 U. S. 14 (1980), and Davis v. Passman, 442 U. S. 228 (1979), to its facts). Such hostility to the core of Bivens is not new. See, e. g., Carlson, 446 U. S., at 32 (Rehnquist, J., dissenting) ("[T]o dispose of this case as if Bivens were rightly decided would in the words of Mr. Justice Frankfurter be to start with an 'unreality' "). Nor is there anything new in the Court's disregard for precedent concerning well-established causes of action. See Alexander v. Sandoval, 532 U. S. 275, 294-297 (2001) (Stevens, J., dissenting).

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