Welcome to Supreme Court Brief. The justices yesterday began picking up the pace of decisions by issuing four and more are expected this morning. One of those decisions, involving a cross-border shooting, may spell the end of the "Bivens remedy." In the Appalachian Trail-pipeline arguments Monday, advocate Michael Kellogg had the not-so-delicate experience of trying to correct the chief justice. And, the Justice Department salutes the late veteran advocate Lawrence Wallace.

Thanks for reading, and feedback is always welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro.

'Nothing Is Left to Do But Overrule It'

In a concurring opinion Tuesday in the cross-border shooting case Hernandez v. Mesa, Justice Clarence Thomas, joined by Justice Neil Gorsuch, said it was time to discard the Bivens remedy "altogether." Is the end near for this 49-year-old cause of action that can provide damages tied to federal agents' violations of the Constitution?

"Probably," said Douglas Laycock of the University of Virginia School of Law. "You never know how far they're going to go on a campaign like this. Every new opinion refusing to apply Bivens to context that is the slightest bit different they seem to get closer to repudiation."

In Tuesday's decision, the five-justice conservative majority, led by Justice Samuel Alito Jr., refused to apply Bivens to the parents of a Mexican teen killed on Mexican territory by a U.S. border patrol agent. Alito noted that the Bivens cause of action had been applied only twice after the original decision in 1971 involving a Fourth Amendment violation: a former congressional staffer's Fifth Amendment claim of dismissal based on sex and a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment.

After those cases, the court changed course. The three cases, wrote Alito, "were the products of an era when the Court routinely inferred 'causes of action' that were "not explicit' in the text of the provision that was allegedly violated."

In his concurrence, Thomas said that Bivens's foundation—creating implied causes of action—had been abandoned. The court has not extended Bivens in 40 years. And, he added, the court has implied that the only three Bivens cases were wrongly decided. He concluded: "Nothing is left to do but overrule it."

Justice Ruth Bader Ginsburg, joined in dissent by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, pushed back at Thomas by recalling that in its last Bivens decision, Ziglar v. Abbasi, the court said its 2017 "opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose."

Ginsburg continued: "The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere."

Laycock said domestic Fourth Amendment cases like Bivens are litigated on a routine basis in the lower courts and often settled. Cases involving prison conditions—another Bivens context—go on as well, with modest success and without financial ruin of individual employees or agencies, according to a forthcoming study in the Stanford Law Review.

"Thomas's opinion is like an invitation to state governments: 'Please, please, file a cert petition asking us to overrule Bivens,'" Laycock said. "They haven't done it yet, but certainly might." —Marcia Coyle

'Maybe I'm Not Entirely Incorrect'

Advocates are regularly faced with statements and questions from justices that might require responding: No, you are wrong. Respectfully.

Recall the exchange in 2018 where veteran advocate Lisa Blatt told Justice Elena Kagan she was "fundamentally wrong in several respects." Kagan retorted: "Fundamentally wrong?" Blatt quickly responded: "Well, it's factually wrong." Kagan drew laughter: "Factually and fundamentally?"

If you missed it Monday, Michael Kellogg of Washington's Kellogg, Hansen, Todd, Figel & Frederick responded to a question from Chief Justice John Roberts Jr. with this statement: "Absolutely incorrect, your honor." He added an "I'm sorry" in going on to describe the location of pipeline central to the dispute before the court.

Roberts began his reply with: "I guess, maybe I'm not entirely incorrect."

Kellogg argued Monday at the high court for the first time in seven years, as our Tony Mauro reported earlier in the week. Kellogg argued on behalf of Cowpasture River Preservation Association in a dispute over granting a gas pipeline right-of-way across the Appalachian National Scenic Trail. Roberts and Kellogg were talking about that pipeline.

"I am not part of the standard group of Supreme Court practitioners appearing regularly before the Court," Kellogg told Mauro. "It is always an honor and a thrill to do so, but it is not the focus of my practice. The three most significant cases I argued were all cases we handled long before they reached the Supreme Court."

One of Kellogg's colleagues, David Frederick, told us in 2018 that uncomfortable moments at the Supreme Court can occur when briefs reveal the parties are "two ships passing in the night."

"You really feel like the other side is on a different planet with their argument and your view of what's really going on is so different," Frederick said then. "That's when the possibility for this sort of misperception is at its highest." —Mike Scarcella

Justice Department Statement on Death of Lawrence Wallace

Former deputy U.S. Solicitor General Lawrence Wallace, who died February 13 at age 88, is being remembered as a fearless civil servant who resisted pressure from higher-level officials. Wallace retired from the solicitor's office in 2003 after arguing 157 cases before the U.S. Supreme Court, a 20th century record.

U.S. Solicitor General Noel Francisco on Tuesday issued a statement that said in part:

"In addition to being a superb lawyer, Larry Wallace was a talented musician, a generous friend, and a proud veteran. He often said that he felt a deep sense of responsibility when arguing cases on behalf of the government. He discharged that responsibility with skill and distinction throughout his long career. His devoted service to this office will never be forgotten. My colleagues and I extend our condolences to his family and join in mourning his loss."

>> Read the full statement here.

Supreme Court Headlines: In Case You Missed It

'Ridiculous and Unhelpful': Commentary on Trump's Bashing of SCOTUS. Many legal scholars quickly rose to defend the justices, and lambaste or question Trump, who has regularly derided the independence of the federal judiciary as an unfair check on the ability of his administration to set policy. [NLJ] More reading here at The Washington Post: Trump Dials Up His Usual Battle With the Judiciary.

•   Among Those Pressing to Weed Out Disloyalty: Clarence Thomas's Wife. "For the past 18 months, Ginni Thomas, the wife of Justice Clarence Thomas, and other conservatives have plied the White House with memos and suggestions about which people to fire—and who should replace them. President Trump has generally treated Ms. Thomas's suggestions coolly, passing them off to advisers, according to people familiar with Ms. Thomas's efforts. But since the end of the Senate impeachment trial, the president has become more distrustful of the people filling the ranks of government and has been giving those recommendations a closer look." [The New York Times]

•   Justices Ask Government to Weigh in on Koch-Linked Donor Case. "The U.S. Supreme Court has asked for the government's view about if the court should hear a case about whether to nix a California law requiring disclosure of some charitable donors. The Koch brothers-backed group Americans for Prosperity Foundation brought a challenge to a requirement that charities disclose their largest donors to state officials." [Bloomberg Law]

•   U.S. Supreme Court Denies Apple's Bid to Avoid Paying $440M Damages in Patent Fight. "The United States Supreme Court on Monday dealt a blow to Apple in a decade-long legal battle over whether the iPhone maker infringed on another company's patents. The Supreme Court declined to consider Apple's appeal to avoid paying nearly $440 million to technology licensing company VirnetX for violations of its patents." [CNN]

•   Supreme Court Is Open to More Damages Against Sudan Over Embassy Bombings. "The justices directed the bulk of their questioning toward an attorney representing Sudan as opposed to the plaintiffs. Conservative and liberal justices raised doubts over Sudan's argument that it could not be hit with punitive damages." [Reuters]