{"id":205,"date":"2026-06-17T14:12:24","date_gmt":"2026-06-17T14:12:24","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=205"},"modified":"2026-06-17T14:12:24","modified_gmt":"2026-06-17T14:12:24","slug":"bivens-at-the-bedside","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=205","title":{"rendered":"Bivens at the bedside"},"content":{"rendered":"
\n

The Relist Watch column examines cert petitions that the Supreme Court has \u201crelisted\u201d for its upcoming conference. A short explanation of relists is available here.<\/em><\/p>\n

Read more Supreme Court may decide important case on immigration detention regarding attorneys\u2019 fees<\/a><\/p>\n

October Term 2025 is drawing to a close in just a few weeks. And before the Supreme Court can close the books on the term, it needs to zero out all of those relisted cases.<\/p>\n

Since our last post, the Supreme Court has been busy at both ends of the relist spectrum \u2013 three grants, a like number of notable denials, and Justice Samuel Alito noting his disagreement with the court\u2019s decision not to grant review. <\/p>\n

On the grant side: the court took up Kian v. Florida<\/em>, a direct challenge to Williams v. Florida<\/em> asking whether the Sixth Amendment’s jury trial guarantee requires a 12-person jury, a question Justice Neil Gorsuch (the author of Ramos v. Louisiana<\/em> prohibiting nonunanimous juries) has been signaling he very much wants to revisit.<\/p>\n

The court also granted review in Guerrero v. Johnson<\/em>, a capital habeas case concerning when such a claim could not have been previously brought under the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, this case asks whether an Atkins v. Virginia<\/em> intellectual disability claim that was technically available for decades became \u201cnewly available\u201d (and thus can be raised) when the DSM-5 changed the diagnostic framework for assessing intellectual disability, a question that has divided the circuits.<\/p>\n

And in Genalo v. Black<\/em>, the court granted the solicitor general\u2019s petition asking whether the due process clause ever requires bond hearings for noncitizens detained under the Immigration and Nationality Act\u2019s mandatory detention provision. This also breaks what has been a notably rough stretch for the government in terms of getting cases granted. A twist: One of the respondents (Black) withdrew her appeal, and the other (G.M.) has been out of ICE custody since 2022. The court granted the case limited to only G.M., and added the question whether her case was now moot.<\/p>\n

On the denial side, the court turned away two Alabama capital cases. In Alabama v. Powell<\/em> \u2013 involving a murder conviction reversed on appeal after the Alabama Court of Criminal Appeals held that a prosecutor had impermissibly commented on the defendant\u2019s decision not to testify \u2013 Alito, joined by Justice Clarence Thomas, , arguing the decision below directly contradicts 1988\u2019s United States v. Robinson<\/em>, which found no constitutional violation on similar facts; Alito and Thomas noted they would grant and summarily reverse on the same grounds in the companion Alabama case.<\/p>\n

The court also denied review in E.D. ex rel. Duell v. Noblesville School District<\/em>, in which a high school freshman alleged that her school violated the First Amendment by refusing to approve flyers advertising her Students for Life club because the flyers depicted students holding \u201cDefund Planned Parenthood\u201d signs. Alito alone, arguing that the court should grant review to clarify the relationship between 1988\u2019s Hazelwood School District v. Kuhlmeier<\/em> (which allows schools broad latitude to regulate school-sponsored expression) and the court\u2019s larger line of government-speech decisions.<\/p>\n

Now on to new business. There are 180 petitions and applications on the docket for this week\u2019s conference. Two are being considered for a second time.<\/p>\n

Is Carlson<\/em> on life support \u2013 or already gone?<\/strong><\/p>\n

Both of this week\u2019s new relists involve a remedy that the Supreme Court has spent the past several decades whittling away at. In the 1971 case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics<\/em>, the court recognized an implied damages action under the Fourth Amendment against federal officers for a warrantless home search and arrest. It later extended that remedy twice, most recently in Carlson v. Green<\/em> (yes, I just referred to a 1980 decision as \u201crecent\u201d), which allowed the estate of a federal prisoner to sue prison officials who allegedly violated the Eighth Amendment by failing to treat his serious asthma attack, resulting in his death. Since then, the court has repeatedly said that recognizing new Bivens<\/em> actions is a \u201cdisfavored judicial activity,\u201d and has instructed lower courts to ask first whether a claim differs in any meaningful way from the three existing Bivens<\/em> contexts, and then, if it does, whether special factors counsel hesitation from extending it further. The problem, as often happens when the Supreme Court says \u201cdon\u2019t extend this, but we\u2019re not overruling it,\u201d is that lower courts have been left to decide whether Carlson<\/em> remains a functioning precedent or has become a dead letter.<\/p>\n

Nielsen v. Watanabe<\/em> is the cleaner of the two vehicles because it involved a convicted prisoner (not a pretrial detainee) and thus only implicates one constitutional provision, the Eighth Amendment. Kekai Watanabe was in federal custody at the Federal Detention Center in Honolulu when he was assaulted in a gang-related fight. He says he told correctional officers that he was experiencing headaches and pain and later described his condition to Francis Nielsen, a staff nurse, who allegedly denied his request to be taken to a hospital and treated him with over-the-counter medication. Months later, Watanabe was diagnosed with a fractured coccyx and bone chips in surrounding soft tissue. He sued Nielsen and others under Bivens<\/em>, alleging deliberate indifference to his serious medical needs. <\/p>\n

The district court dismissed, reasoning that Watanabe\u2019s claim presented a new Bivens<\/em> context because his injury was not comparable to the fatal medical emergency in Carlson<\/em> and because he had access to the Bureau of Prisons\u2019 administrative remedy program (which allows inmates to seek administrative review of issues relating to their detention). A divided panel of the U.S. Court of Appeals for the 9th Circuit reversed. The panel held that Watanabe\u2019s claim did not meaningfully differ from Carlson<\/em> because both involved the alleged deliberate indifference of federal prison officials to serious medical needs. It further held that the existence of alternative remedial structures, including the ARP, did not change things.<\/p>\n

Eleven judges dissented from denial of rehearing en banc. Judge Ryan Nelson, joined by nine others, said the 9th Circuit had disregarded the Supreme Court\u2019s Bivens<\/em> instructions and had deepened circuit splits over whether alternative remedies and differences in the severity and immediacy of medical harm can make a context \u201cnew.\u201d Judge Daniel Collins wrote separately to say that, under the Supreme Court\u2019s current standards, Carlson<\/em> may have been so thoroughly hollowed out that it is hard to know \u201cwhat, if anything, is left\u201d of it.<\/p>\n

Nielsen\u2019s presses that point, arguing that if an on-scene death after egregious mistreatment is Carlson<\/em>, a fractured coccyx treated with over-the-counter medication and later referred for outside care is something else. Watanabe that his claim is Carlson<\/em> all over again: same constitutional right, same kind of plaintiff, same kind of defendant, same alleged failure to provide adequate medical care. He says the supposed splits are exaggerated, that an inmate need not die to bring a Carlson<\/em> claim, and that the ARP does not create a per se new context because Carlson<\/em> remains binding within its established domain.<\/p>\n

Mohan v. Watkins<\/em> arrives as the solicitor general\u2019s companion case. Jordan Watkins was detained at the Metropolitan Correctional Center in Chicago, first as a pretrial detainee and then, briefly, as a convicted prisoner before transfer. He underwent hernia-repair surgery at an outside hospital. After returning to MCC, he says, he immediately experienced severe groin pain and swelling, including testicles swollen \u201cto the size of a grapefruit,\u201d a phrase that manages to be both clinically descriptive and quite culinarily off-putting. Watkins alleges that he told MCC medical staff, including Dr. Brij Mohan, about his condition; that staff dismissed the swelling as a routine side effect; that the medication they gave him did not work; and that they denied his request for follow-up care with his surgical team. He later underwent another surgery after transfer to a separate facility. Watkins sued the United States under the Federal Tort Claims Act and brought Bivens<\/em> claims against Mohan and others.<\/p>\n

The district court dismissed the case, but the U.S. Court of appeals for the 7th Circuit reversed, holding that Watkins\u2019 Eighth Amendment claim for constitutionally inadequate medical care \u201cfit squarely within the Bivens<\/em> claim recognized by Carlson<\/em>,\u201d while remanding the FTCA claim for further proceedings. Judge Thomas Kirsch dissented in part, concluding that Watkins\u2019 claim differed meaningfully from Carlson<\/em> because it involved chronic post-surgical pain, a pretrial detention facility, and medical care that was less urgent and less severe than the fatal asthma attack in Carlson<\/em>.<\/p>\n

The petitioners in both cases \u2013 the solicitor general in Mohan<\/em>, Nielsen (represented by Supreme Court heavy hitter Jeff Lamken) in his own case \u2013 argue that the circuits are badly split in two distinct ways, and they want the justices to clean it all up. The first split concerns whether the existence of the Bureau of Prisons\u2019 ARP grievance process (which postdated Carlson\u2019s death and 1980\u2019s Carlson<\/em> did not discuss it, but which has existed since 1979) means that later-arising prisoner medical-care suits involve a \u201cnew context\u201d to which Carlson<\/em> should not be extended. The U.S. Court of Appeals for the 3rd, 10th, and 11th Circuit answered yes. Several other circuits, including the U.S. Courts of Appeals for the 1st and 9th Circuits, disagree. The second split concerns whether the severity of a plaintiff’s injury can render the context \u201cnew\u201d as compared to Carlson<\/em>\u2019s death-by-asthma facts. The U.S. Courts of Appeals for the 3rd, 7th, and 9th Circuits say it cannot (a plaintiff need not suffer death or a life-threatening injury to bring a Carlson<\/em> claim); the U.S. Courts of Appeals for the 1st, 10th, and 11th Circuits say less severe or non-emergency injuries do indeed create a new context.<\/p>\n

The vehicle question is where things get interesting. The government\u2019s petition in Mohan<\/em> actually recommends that the court grant Nielsen<\/em> instead and hold Mohan<\/em>, noting that Nielsen<\/em> arises purely under the Eighth Amendment and avoids complications from Watkins\u2019 pretrial-detainee status, which implicates the Fifth Amendment as well. Nielsen\u2019s own supplemental brief enthusiastically concurs, for obvious reasons. By the time of the , however, the government had softened its preference, suggesting that the court could grant Nielsen<\/em>, Mohan<\/em>, or both and consolidate them. The respondents, naturally, insist neither case warrants review. Watanabe\u2019s counters that the circuit decisions largely reflect case-specific factual variations rather than entrenched doctrinal conflict, and that further consideration by the lower courts is warranted.<\/p>\n

The court has been dancing around Carlson<\/em>‘s viability for years, most recently reaffirming it exists in Goldey v. Fields<\/em> last term, while simultaneously making it harder and harder to use. Judge Collins of the 9th Circuit, dissenting from the denial of rehearing en banc in Nielsen<\/em>, put it most directly: the court’s current standards, \u201cif faithfully applied, would seemingly finish off Carlson<\/em> entirely,\u201d and lower courts could use some guidance as to \u201cwhat, if anything, is left of Carlson<\/em>.\u201d<\/p>\n

We\u2019ll have a better idea Monday about whether the court is finally ready to answer that question \u2013 or to let the circuits keep litigating the afterlife of a 46-year-old precedent one broken bone at a time. But I think the odds of a grant in one or both of these cases looks pretty good.<\/p>\n

New Relists<\/strong><\/p>\n

Nielsen v. Watanabe<\/em>, 25-417<\/p>\n

Issue: <\/strong>Whether the U.S. Court of Appeals for the 9th Circuit erred in recognizing a\u00a0\u00a0cause of action.<\/p>\n

(Relisted after the June 11 conference.)<\/p>\n

Mohan v. Watkins<\/em>, 25-952<\/p>\n

Issue: <\/strong>Whether\u00a0Carlson v. Green<\/em>\u00a0permits an inmate\u2019s claim that prison staff at a pretrial detention center violated the Fifth and Eighth Amendments through deliberate indifference to an inmate\u2019s chronic pain after a surgery.<\/p>\n

Read more Haitian nationals ask for DIG in TPS Case<\/a><\/p>\n

(Relisted after the June 11 conference.)<\/p>\n

Returning Relists<\/strong><\/p>\n

Gator\u2019s Custom Guns, Inc. v. Washington<\/em>, 25-153<\/p>\n

Issue: <\/strong>Whether ammunition feeding devices with the capacity to hold more than 10 rounds are \u201cArms\u201d presumptively entitled to constitutional protection under the plain text of the Second Amendment.<\/p>\n

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

Duncan v. Bonta<\/em>, 25-198<\/p>\n

Issues:<\/strong> (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.<\/p>\n

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

Viramontes v. Cook County<\/em>, 25-238<\/p>\n

Issue<\/strong>: Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.<\/p>\n

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

National Association for Gun Rights v. Lamont<\/em>, 25-421<\/p>\n

Issue<\/strong>: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.<\/p>\n

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

Grant v. Higgins<\/em>, 25-566<\/p>\n

Issue<\/strong>: Whether the Second and 14th Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.<\/p>\n

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

City of Los Angeles v. Estate of Hernandez<\/em>, 25-538<\/p>\n

Issues<\/strong>: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court\u2019s precedents, including\u00a0Graham v. Connor<\/em>\u00a0and\u00a0Plumhoff v. Rickard<\/em>, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme \u201cmoment-of-threat\u201d rule that this court unanimously rejected in\u00a0Barnes v. Felix<\/em>; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was \u201cclearly established\u201d at an impermissibly high level of generality, contrary to this court\u2019s repeated warnings in\u00a0Kisela v. Hughes<\/em>,\u00a0City & County of San Francisco v. Sheehan<\/em>, and\u00a0Ashcroft v. al-Kidd<\/em>; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.<\/p>\n

(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

Smith v. Kind<\/em>, 25-943<\/p>\n

Issue<\/strong>: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.<\/p>\n

(Relisted after the Apr. 17, April 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

McCarthy v. Hernandez<\/em>, 25-748<\/p>\n

Issues: <\/strong>(1) Whether the U.S. Court of Appeals for the 2nd Circuit violated the\u00a0\u00a0by finding a state jury instruction invalid under\u00a0Missouri v. Seibert<\/em>; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant\u2019s guilt that was unaffected by the response.<\/p>\n

(Relisted after the Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

Dershowitz v. Cable News Network, Inc.<\/em>, 25-770<\/p>\n

Issues: <\/strong>(1) Whether a defendant\u2019s systematic omission of qualifying and limiting language from a plaintiff\u2019s recorded statement constitutes proof of actual malice under\u00a0New York Times Co. v. Sullivan<\/em>, sufficient to survive summary judgment; (2) whether the actual malice standard established in\u00a0Sullivan<\/em>, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures; and (3) whether this court should modify\u00a0Sullivan\u2019s<\/em>\u00a0clear-and-convincing and burden-of-proof evidentiary standards.<\/p>\n

(Relisted after the May 21, May 28, June 4, and June 11 conferences.)<\/p>\n

Newberry v. Texas<\/em>, 25-862<\/p>\n

Issues: <\/strong>(1) Whether, where the petitioner, the state, and the habeas court all agree that a conviction is unconstitutional and must be reversed, it violates due process for a state superior court to summarily deny relief without explanation; and (2) whether the prosecution violated\u00a0Brady v. Maryland<\/em>\u00a0by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide.<\/p>\n

(Relisted after the May 28, June 4, and June 11 conferences.)<\/p>\n

Grayson v. United States<\/em>, 25-851<\/p>\n

Issue: <\/strong>Whether\u00a0\u2019s exclusionary rule, which provides that \u201cno part of the contents\u201d of an intercepted communication \u201cand no evidence derived therefrom may be received in evidence in any trial, hearing, or proceeding\u201d before any state or federal court or governmental body \u201cif the disclosure of that information\u201d would violate Title III of the\u00a0, contains an unwritten clean-hands exception.<\/p>\n

(Relisted after the June 4 and June 11 conferences.)<\/p>\n

United States v. Carter<\/em>, 25-885<\/p>\n

Issue: <\/strong>Whether perceptions of law enforcement that a court attributes to a particular racial group are a relevant factor in the Fourth Amendment analysis of whether a member of that group has been seized.<\/p>\n

Read more Haitian citizens ask justices to throw out dispute over whether Trump administration properly ended protected status for them<\/a><\/p>\n

(Relisted after the June 4 and June 11 conferences.)<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The Relist Watch column examines cert petitions that the Supreme Court has \u201crelisted\u201d for its upcoming conference. A short explanation of relists is available here. Read more Supreme Court may decide important case on immigration detention regarding attorneys\u2019 fees October Term 2025 is drawing to a close in just a few weeks. And before the […]<\/p>\n","protected":false},"author":1,"featured_media":82,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-205","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-interesting"],"yoast_head":"\nBivens at the bedside - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=205\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bivens at the bedside - American Service Review\" \/>\n<meta property=\"og:description\" content=\"The Relist Watch column examines cert petitions that the Supreme Court has \u201crelisted\u201d for its upcoming conference. 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A short explanation of relists is available here. Read more Supreme Court may decide important case on immigration detention regarding attorneys\u2019 fees October Term 2025 is drawing to a close in just a few weeks. 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