Cite as: 536 U. S. 273 (2002)
Stevens, J., dissenting
hurst State School and Hospital v. Halderman, 451 U. S. 1, 17, 18 (1981), or "generalized," "systemwide" duties on States, Blessing, 520 U. S., at 343; Suter, 503 U. S., at 363. What has never before been required is congressional intent specifically to make the right enforceable under § 1983. Yet that is exactly what the Court, at points, appears to require by relying on implied right of action cases: the Court now asks whether "Congress nonetheless intended private suits to be brought before thousands of federal- and state-court judges," ante, at 290.
If it were true, as the Court claims, that the implied right of action and § 1983 inquiries neatly "overlap in one meaningful respect—in either case we must first determine whether Congress intended to create a federal right," ante, at 283, then I would have less trouble referencing implied right of action precedent to determine whether a federal right exists. Contrary to the Court's suggestion, however, our implied right of action cases do not necessarily cleanly separate out the "right" question from the "cause of action" question. For example, in the discussion of rights-creating language in Cannon v. University of Chicago, 441 U. S. 677 (1979), which the Court characterizes as pertaining only to whether there is a right, ante, at 287, Cannon's reasoning is explicitly based on whether there is "reason to infer a private remedy," 441 U. S., at 691, and the "propriety of implication of a cause of action," id., at 690, n. 13. Because Cannon and other implied right of action cases do not clearly distinguish the questions of "right" and "cause of action," it is inappropriate to use these cases to determine whether a statute creates rights enforceable under § 1983.
The Court, however, asserts that it has not imported the entire implied right of action inquiry into the § 1983 context, explaining that while § 1983 plaintiffs share with implied right of action plaintiffs the burden of establishing a federal right, § 1983 plaintiffs "do not have the burden of showing an intent to create a private remedy because § 1983 generally
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