Cite as: 539 U. S. 166 (2003)
Scalia, J., dissenting
would not favor the revision, not only because it is a novelty with no basis in our prior opinions, but also because of the uncertainty, and the obvious opportunity for gamesmanship, that the revision-as-narrowed produces. If, however, I did make this more limited addition to the textually unsupported Cohen doctrine, I would at least do so in an undisguised fashion.
* * *
Petitioner could have obtained pre-trial review of the § 549.43 medication order by filing suit under the Administrative Procedure Act, 5 U. S. C. § 551 et seq., or even by filing a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), action, which is available to federal pretrial detainees challenging the conditions of their confinement, see, e. g., Lyons v. United States Marshals, 840 F. 2d 202 (CA3 1987). In such a suit, he could have obtained immediate appellate review of denial of relief.6 But if he chooses to challenge his forced medication in the context of a criminal trial, he must abide by the limitations attached to such a challenge—which prevent him from stopping the proceedings in their tracks. Petitioner's mistaken litigation strategy, and this Court's desire to decide an interesting constitutional issue, do not justify a disregard of the limits that Congress has imposed on courts of appeals' (and our own) jurisdiction. We should vacate the judgment here, and remand the case to the Court of Appeals with instructions to dismiss.
6 Petitioner points out that there are disadvantages to such an approach—for example, lack of constitutional entitlement to appointed counsel in a Bivens action. That does not entitle him or us to disregard the limits on appellate jurisdiction.
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