Ziglar v. Abbasi

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certiorari to the united states court of appeals for the second circuit

No. 15–1358. Argued January 18, 2017—Decided June 19, 2017*

In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then fled this putative class action against petitioners, two groups of federal offcials. The frst group con- sisted of former Attorney General John Ashcroft, former Federal Bu- reau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Of- fcials). The second group consisted of the facility's warden and assist- ant warden, Dennis Hasty and James Sherman (Wardens). Respond- ents sought damages for constitutional violations under the implied cause-of-action theory adopted in Bivens v. Six Unknown Fed. Narcot- ics Agents, 403 U. S. 388, alleging that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the Fifth Amendment; that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment.

Respondents also brought a claim under 42 U. S. C. § 1985(3), which for- bids certain conspiracies to violate equal protection rights. The Dis- trict Court dismissed the claims against the Executive Offcials but al- lowed the claims against the Wardens to go forward. The Second Circuit affrmed in most respects as to the Wardens but reversed as to the Executive Offcials, reinstating respondents' claims.

Held: The judgment is reversed in part and vacated and remanded in part.

789 F. 3d 218, reversed in part and vacated and remanded in part.

*Together with No. 15–1359, Ashcroft, Former Attorney General, et al.

v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also on

certiorari to the same court.

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1. The limited reach of the Bivens action informs the decision

whether an implied damages remedy should be recognized here.

Pp. 130–137.

(a) In 42 U. S. C. § 1983, Congress provided a specifc damages rem- edy for plaintiffs whose constitutional rights were violated by state of- fcials, but Congress provided no corresponding remedy for constitu- tional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal offcers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amendment gender- discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v.

Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy under the Constitution itself.

Pp. 130–131.

(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “provide such remedies as are necessary to make effective” a statute's purpose.

J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted

a far more cautious course, clarifying that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress' intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well-settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judi- cial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.

When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the analysis. The question is whether Congress or the courts should decide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “ `special factors counselling hesitation in the ab- sence of affrmative action by Congress.' ” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the effcacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind

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of remedy. An alternative remedial structure may also limit the Judi- ciary's power to infer a new Bivens cause of action. Pp. 131–137.

2. Considering the relevant special factors here, a Bivens-type rem-

edy should not be extended to the claims challenging the confnement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Offcials in the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents' due process and equal protection rights by holding them in restrictive conditions of confnement, and the allegations that the Wardens violated the Fourth and Fifth Amend- ments by subjecting respondents to frequent strip searches. The de- tention policy claims do not include the guard-abuse claim against War- den Hasty. Pp. 137–146.

(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e. g., the rank of the off- cers involved; the constitutional right at issue; the extent of judicial guidance for the offcial conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of po- tential special factors not considered in previous Bivens cases. Re- spondents' detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special-factors analysis before allowing this damages suit to proceed. Pp. 138–140.

(b) The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.

With regard to the Executive Offcials, a Bivens action is not “a proper vehicle for altering an entity's policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold offcers responsible for acts of their subordinates, see Iqbal, supra, at 676.

Even an action confned to the Executive Offcials' own discrete conduct would call into question the formulation and implementation of a high- level executive policy, and the burdens of that litigation could prevent offcials from properly discharging their duties, see Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sen- sitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.

Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those

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claims challenge major elements of the Government's response to the September 11 attacks, they necessarily require an inquiry into national- security issues. National-security policy, however, is the prerogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress' failure to provide a damages remedy might be more than mere oversight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S.

412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “ `other alternative forms of judicial relief,' ” Minneci

v. Pollard, 565 U. S. 118, 124, including injunctions and habeas petitions.

The proper balance in situations like this, between deterring constitu- tional violations and freeing high offcials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents' detention policy claims to proceed under Bivens. Pp. 140–146.

3. The Second Circuit also erred in allowing the prisoner abuse claim

against Warden Hasty to go forward without conducting the required special-factors analysis. Respondents' prisoner abuse allegations against Warden Hasty state a plausible ground to fnd a constitutional violation should a Bivens remedy be implied. But the frst question is whether the claim arises in a new Bivens context. This claim has sig- nifcant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitutional right is differ- ent here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judicial guidance available to this warden with respect to his supervisory duties was less developed.

There might have been alternative remedies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court's expressed caution about extending the Bivens remedy, this context must be regarded as a new one.

Pp. 146–149.

4. Petitioners are entitled to qualifed immunity with respect to re-

spondents' claims under 42 U. S. C. § 1985(3). Pp. 149–156.

(a) Assuming that respondents' allegations are true and well pleaded, the question is whether a reasonable offcer in petitioners' posi- tion would have known the alleged conduct was an unlawful conspiracy.

The qualifed immunity inquiry turns on the “objective legal reasonable-

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ness” of the offcial's acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “as- sessed in light of the legal rules that were `clearly established' at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635,

639. If it would have been clear to a reasonable offcer that the alleged

conduct “was unlawful in the situation he confronted,” Saucier v. Katz, 533 U. S. 194, 202, the defendant offcer is not entitled to qualifed im- munity. But if a reasonable offcer might not have known that the con- duct was unlawful, then the offcer is entitled to qualifed immunity.

Pp. 150–152.

(b) Here, reasonable offcials in petitioners' positions would not have known with suffcient certainty that § 1985(3) prohibited their joint consultations and the resulting policies. There are two reasons.

First, the conspiracy is alleged to have been among offcers in the same Department of the Federal Government. And there is no clearly estab- lished law on the issue whether agents of the same executive depart- ment are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. § 1985(3). Second, open discussion among federal offcers should be encouraged to help those offcials reach consensus on department policies, so there is a reasonable argument that § 1985(3) liability should not extend to cases like this one. As these considera- tions indicate, the question whether federal offcials can be said to “con- spire” in these kinds of situations is suffciently open that the offcials in this suit would not have known that § 1985(3) applied to their discus- sions and actions. It follows that reasonable offcers in petitioners' po- sitions would not have known with any certainty that the alleged agree- ments were forbidden by that statute. Pp. 152–155.

Kennedy, J., delivered the opinion of the Court, except as to Part IV–B.

Roberts, C. J., and Alito, J., joined that opinion in full, and Thomas, J., joined except as to Part IV–B. Thomas, J., fled an opinion concurring in part and concurring in the judgment, post, p. 156. Breyer, J., fled a dissenting opinion, in which Ginsburg, J., joined, post, p. 160. Soto- mayor, Kagan, and Gorsuch, JJ., took no part in the consideration or decision of the cases.

Acting Solicitor General Gershengorn argued the cause for petitioners in Nos. 15–1358 and 15–1359. With him on the briefs in No. 15–1359 were Principal Deputy Assistant Attorney General Mizer, Deputy Solicitor General Stewart, Curtis E. Gannon, Douglas N. Letter, Barbara L. Herwig,

H. Thomas Byron III, and Michael Shih. William Alden

McDaniel, Jr., fled briefs for petitioner in No. 15–1358.

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Jeffrey A. Lamken argued the cause for petitioners in No. 15–1363. With him on the briefs were Michael G. Pat- tillo, Jr., Eric R. Nitz, James A. Barta, Clifton S. Elgarten, Kate M. Growley, and Debra L. Roth.

Rachel A. Meeropol argued the cause for respondents in all cases. With her on the brief were Michael Winger, Baher A. Azmy, Shayana Kadidal, Alexander A. Reinert, Nancy L. Kestenbaum, and David M. Zionts.†

Justice Kennedy delivered the opinion of the Court, ex- cept as to Part IV–B.

After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be de- scribed, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some

†Richard A. Samp fled a brief in all cases for Former U. S. Attorney General William P. Barr et al. as amici curiae urging reversal.

Briefs of amici curiae urging affrmance in all cases were fled for the American Association for Justice by Jeffrey R. White and Julie Braman Kane; for the American Civil Liberties Union et al. by Matthew E. Price, Trina Realmuto, Hina Shamsi, Lee Gelernt, David Cole, Jonathan Ha- fetz, Matt Adams, Mary A. Kenney, and Eugene Iredale; for Americans United for Separation of Church and State et al. by Richard B. Katskee and Elliot M. Mincberg; for Asian Americans Advancing Justice et al. by Catherine E. Stetson; for the Commonwealth Lawyers Association by Gary A. Isaac and Logan A. Steiner; for Former Correctional Offcials by Andrew S. Pollis; for Immigration Detention Advocacy Organizations by Brian J. Murray and Ranjana Natarajan; for Medical and Other Scien- tifc and Health-Related Professionals by Eric Ordway, Kami Lizarraga, Glenda Bleiberg, and Alexandria Swette; and for Karen Korematsu et al.

by Joseph Margulies, Robert L. Rusky, and Eric K. Yamamoto.

Allan Ides, pro se, fled a brief in all cases for Professors of Civil Proce-

dure as amici curiae.

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of the aliens who had been detained fled suit, leading to the cases now before the Court.

The complaint named as defendants three high executive offcers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause-of-action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. § 1980, 42 U. S. C. § 1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.

The suit was commenced in the United States District Court for the Eastern District of New York. After this Court's decision in Ashcroft v. Iqbal, 556 U. S. 662 (2009), a fourth amended complaint was fled; and that is the com- plaint to be considered here. Motions to dismiss the fourth amended complaint were denied as to some defendants and granted as to others. These rulings were the subject of in- terlocutory appeals to the United States Court of Appeals for the Second Circuit. Over a dissenting opinion by Judge Raggi with respect to the decision of the three-judge panel— and a second unsigned dissent from the court's order declin- ing to rehear the suit en banc, joined by Judge Raggi and fve other judges—the Court of Appeals ruled that the com- plaint was suffcient for the action to proceed against the named offcials who are now before us. See Turkmen v.

Hasty, 789 F. 3d 218 (2015) (panel decision); Turkmen v.

Hasty, 808 F. 3d 197 (2015) (en banc decision).

The Court granted certiorari to consider these rulings.

580 U. S. 915 (2016). The offcials who must defend the suit on the merits, under the ruling of the Court of Appeals, are the petitioners here. The former detainees who seek relief under the fourth amended complaint are the respondents.

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The various claims and theories advanced for recovery, and the grounds asserted for their dismissal as insuffcient as a matter of law, will be addressed in turn.

Given the present procedural posture of the suit, the Court accepts as true the facts alleged in the complaint. See Iqbal, 556 U. S., at 678.

In the weeks following the September 11, 2001, terrorist attacks—the worst in American history—the Federal Bu- reau of Investigation (FBI) received more than 96,000 tips from members of the public. See id., at 667. Some tips were based on well-grounded suspicion of terrorist activity, but many others may have been based on fear of Arabs and Muslims. FBI agents “questioned more than 1,000 people with suspected links to the [September 11] attacks in partic- ular or to terrorism in general.” Ibid.

While investigating the tips—including the less substanti- ated ones—the FBI encountered many aliens who were pres- ent in this country without legal authorization. As a result, more than 700 individuals were arrested and detained on im- migration charges. Ibid. If the FBI designated an alien as not being “of interest” to the investigation, then he or she was processed according to normal procedures. In other words the alien was treated just as if, for example, he or she had been arrested at the border after an illegal entry. If, however, the FBI designated an alien as “of interest” to the investigation, or if it had doubts about the proper designa- tion in a particular case, the alien was detained subject to a “hold-until-cleared policy.” The aliens were held without bail.

Respondents were among some 84 aliens who were subject to the hold-until-cleared policy and detained at the Metropol- itan Detention Center (MDC) in Brooklyn, New York. They were held in the Administrative Maximum Special Housing

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Unit (or Unit) of the MDC. The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to offcial Bureau of Prisons policy, detainees were held in “ `tiny cells for over 23 hours a day.' ” 789 F. 3d, at 228.

Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were for- bidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—any time they were moved, as well as at random in their cells.

Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Ibid. Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fngers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.

Respondents are six men of Arab or South Asian descent.

Five are Muslims. Each was illegally in this country, ar- rested during the course of the September 11 investigation, and detained in the Administrative Maximum Special Hous- ing Unit for periods ranging from three to eight months.

After being released respondents were removed from the United States.

Respondents then sued on their own behalf, and on behalf of a putative class, seeking compensatory and punitive dam- ages, attorney's fees, and costs. Respondents, it seems fair to conclude from the arguments presented, acknowledge that in the ordinary course aliens who are present in the United States without legal authorization can be detained for some period of time. But here the challenge is to the conditions

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of their confnement and the reasons or motives for imposing those conditions. The gravamen of their claims was that the Government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions.

As relevant here, respondents sued two groups of federal offcials in their offcial capacities. The frst group consisted of former Attorney General John Ashcroft, former FBI Di- rector Robert Mueller, and former Immigration and Natural- ization Service Commissioner James Ziglar. This opinion refers to these three petitioners as the “Executive Offcials.” The other petitioners named in the complaint were the MDC's warden, Dennis Hasty, and associate warden, James Sherman. This opinion refers to these two petitioners as the “Wardens.”

Seeking to invoke the Court's decision in Bivens, respond- ents brought four claims under the Constitution itself.

First, respondents alleged that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the substantive due process component of the Fifth Amendment. Second, respondents alleged that petitioners detained them in harsh conditions because of their actual or apparent race, religion, or national origin, in violation of the equal protection component of the Fifth Amendment.

Third, respondents alleged that the Wardens subjected them to punitive strip searches unrelated to any legitimate peno- logical interest, in violation of the Fourth Amendment and the substantive due process component of the Fifth Amend- ment. Fourth, respondents alleged that the Wardens know- ingly allowed the guards to abuse respondents, in violation of the substantive due process component of the Fifth Amendment.

Respondents also brought a claim under 42 U. S. C. § 1985(3), which forbids certain conspiracies to violate equal protection rights. Respondents alleged that petitioners conspired with one another to hold respondents in harsh con-

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ditions because of their actual or apparent race, religion, or national origin.

The District Court dismissed the claims against the Exec- utive Offcials but allowed the claims against the Wardens to go forward. The Court of Appeals affrmed in most respects as to the Wardens, though it held that the prisoner abuse claim against Sherman (the associate warden) should have been dismissed. 789 F. 3d, at 264–265. As to the Executive Offcials, however, the Court of Appeals reversed, reinstat- ing respondents' claims. Ibid. As noted above, Judge Raggi dissented. She would have held that only the pris- oner abuse claim against Hasty should go forward. Id., at 295, n. 41, 302 (opinion concurring in part in judgment and dissenting in part). The Court of Appeals declined to re- hear the suit en banc, 808 F. 3d, at 197; and, again as noted above, Judge Raggi joined a second dissent along with fve other judges, id., at 198. This Court granted certiorari.

The frst question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defning the reach and the limits of that precedent.

In 1871, Congress passed a statute that was later codifed at Rev. Stat. § 1979, 42 U. S. C. § 1983. It entitles an injured person to money damages if a state offcial violates his or her constitutional rights. Congress did not create an analogous statute for federal offcials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specifc damages remedy for plaintiffs whose constitutional rights were vio- lated by agents of the Federal Government.

In 1971, and against this background, this Court decided Bivens. The Court held that, even absent statutory au-

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thorization, it would enforce a damages remedy to compen- sate persons injured by federal offcers who violated the pro- hibition against unreasonable search and seizures. See 403

U. S., at 397. The Court acknowledged that the Fourth

Amendment does not provide for money damages “in so many words.” Id., at 396. The Court noted, however, that Congress had not foreclosed a damages remedy in “explicit” terms and that no “special factors” suggested that the Judi- ciary should “hesitat[e]” in the face of congressional silence.

Id., at 396–397. The Court, accordingly, held that it could authorize a remedy under general principles of federal juris- diction. See id., at 392 (citing Bell v. Hood, 327 U. S. 678, 684 (1946)).

In the decade that followed, the Court recognized what has come to be called an implied cause of action in two cases involving other constitutional violations. In Davis v. Pass- man, 442 U. S. 228 (1979), an administrative assistant sued a Congressman for fring her because she was a woman. The Court held that the Fifth Amendment Due Process Clause gave her a damages remedy for gender discrimination. Id., at 248–249. And in Carlson v. Green, 446 U. S. 14 (1980), a prisoner's estate sued federal jailers for failing to treat the prisoner's asthma. The Court held that the Eighth Amend- ment Cruel and Unusual Punishments Clause gave him a damages remedy for failure to provide adequate medical treatment. See id., at 19. These three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.

To understand Bivens and the two other cases implying a damages remedy under the Constitution, it is necessary to understand the prevailing law when they were decided. In the mid-20th century, the Court followed a different ap- proach to recognizing implied causes of action than it follows now. During this “ancien regime,” Alexander v. Sandoval,

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532 U. S. 275, 287 (2001), the Court assumed it to be a proper judicial function to “provide such remedies as are necessary to make effective” a statute's purpose, J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964). Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself. See, e. g., id., at 430– 432; Allen v. State Bd. of Elections, 393 U. S. 544, 557 (1969); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 239 (1969) (“The existence of a statutory right implies the exist- ence of all necessary and appropriate remedies”).

These statutory decisions were in place when Bivens rec- ognized an implied cause of action to remedy a constitutional violation. Against that background, the Bivens decision held that courts must “ `adjust their remedies so as to grant the necessary relief ' ” when “ `federally protected rights have been invaded.' ” 403 U. S., at 392 (quoting Bell, supra, at 684); see also 403 U. S., at 402 (Harlan, J., concurring in judg- ment) (discussing cases recognizing implied causes of action under federal statutes). In light of this interpretive frame- work, there was a possibility that “the Court would keep expanding Bivens until it became the substantial equivalent of 42 U. S. C. § 1983. ” Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1139– 1140 (2014).

Later, the arguments for recognizing implied causes of ac- tion for damages began to lose their force. In cases decided after Bivens, and after the statutory implied cause-of-action cases that Bivens itself relied upon, the Court adopted a far more cautious course before fnding implied causes of action.

In two principal cases under other statutes, it declined to fnd an implied cause of action. See Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 42, 45–46 (1977); Cort v. Ash, 422 U. S. 66, 68–69 (1975). Later, in Cannon v. University of Chicago, 441 U. S. 677 (1979), the Court did allow an im- plied cause of action; but it cautioned that, where Congress “intends private litigants to have a cause of action,” the “far

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better course” is for Congress to confer that remedy in ex- plicit terms. Id., at 717.

Following this expressed caution, the Court clarifed in a series of cases that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent. Sandoval, 532 U. S., at 286. If the statute itself does not “displa[y] an intent” to create “a pri- vate remedy,” then “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the stat- ute.” Id., at 286–287; see also Transamerica Mortgage Ad- visors, Inc. v. Lewis, 444 U. S. 11, 15–16, 23–24 (1979); Kara- halios v. Federal Employees, 489 U. S. 527, 536–537 (1989).

The Court held that the judicial task was instead “limited solely to determining whether Congress intended to create the private right of action asserted.” Touche Ross & Co. v.

Redington, 442 U. S. 560, 568 (1979). If the statute does not itself so provide, a private cause of action will not be created through judicial mandate. See Transamerica, supra, at 24.

The decision to recognize an implied cause of action under a statute involves somewhat different considerations than when the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself.

When Congress enacts a statute, there are specifc proce- dures and times for considering its terms and the proper means for its enforcement. It is logical, then, to assume that Congress will be explicit if it intends to create a private cause of action. With respect to the Constitution, however, there is no single, specifc congressional action to consider and interpret.

Even so, it is a signifcant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal offcials in order to rem- edy a constitutional violation. When determining whether traditional equitable powers suffce to give necessary consti- tutional protection—or whether, in addition, a damages rem-

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edy is necessary—there are a number of economic and gov- ernmental concerns to consider. Claims against federal offcials often create substantial costs, in the form of defense and indemnifcation. Congress, then, has a substantial re- sponsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon indi- vidual offcers and employees of the Federal Government.

In addition, the time and administrative costs attendant upon intrusions resulting from the discovery and trial process are signifcant factors to be considered. In an analogous con- text, Congress, it is fair to assume, weighed those concerns in deciding not to substitute the Government as defendant in suits seeking damages for constitutional violations. See 28 U. S. C. § 2679(b)(2)(A) (providing that certain provisions of the Federal Tort Claims Act do not apply to any claim against a federal employee “which is brought for a violation of the Constitution”).

For these and other reasons, the Court's expressed caution as to implied causes of actions under congressional statutes led to similar caution with respect to actions in the Bivens context, where the action is implied to enforce the Constitu- tion itself. Indeed, in light of the changes to the Court's general approach to recognizing implied damages remedies, it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today.

To be sure, no congressional enactment has disapproved of these decisions. And it must be understood that this opin- ion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure con- text in which it arose. Bivens does vindicate the Constitu- tion by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement offcers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fxed principle in the law, are powerful reasons to retain it in that sphere.

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Given the notable change in the Court's approach to recog- nizing implied causes of action, however, the Court has made clear that expanding the Bivens remedy is now a “disfa- vored” judicial activity. Iqbal, 556 U. S., at 675. This is in accord with the Court's observation that it has “consistently refused to extend Bivens liability to any new context or new category of defendants.” Correctional Services Corp. v.

Malesko, 534 U. S. 61, 68 (2001). Indeed, the Court has re- fused to do so for the past 30 years.

For example, the Court declined to create an implied dam- ages remedy in the following cases: a First Amendment suit against a federal employer, Bush v. Lucas, 462 U. S. 367, 390 (1983); a race-discrimination suit against military offcers, Chappell v. Wallace, 462 U. S. 296, 297, 304–305 (1983); a sub- stantive due process suit against military offcers, United States v. Stanley, 483 U. S. 669, 671–672, 683–684 (1987); a procedural due process suit against Social Security offcials, Schweiker v. Chilicky, 487 U. S. 412, 414 (1988); a procedural due process suit against a federal agency for wrongful termi- nation, FDIC v. Meyer, 510 U. S. 471, 473–474 (1994); an Eighth Amendment suit against a private prison operator, Malesko, supra, at 63; a due process suit against offcials from the Bureau of Land Management, Wilkie v. Robbins, 551 U. S. 537, 547–548, 562 (2007); and an Eighth Amendment suit against prison guards at a private prison, Minneci v.

Pollard, 565 U. S. 118, 120 (2012).

When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is “who should decide” whether to provide for a damages remedy, Congress or the courts?

Bush, 462 U. S., at 380.

The answer most often will be Congress. When an issue “ `involves a host of considerations that must be weighed and appraised,' ” it should be committed to “ `those who write

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the laws' ” rather than “ `those who interpret them.' ” Ibid. (quoting United States v. Gilman, 347 U. S. 507, 512–513 (1954)). In most instances, the Court's precedents now in- struct, the Legislature is in the better position to consider if “ `the public interest would be served' ” by imposing a “ ` “new substantive legal liability.” ' ” Schweiker, supra, at 426–427 (quoting Bush, supra, at 390). As a result, the Court has urged “caution” before “extending Bivens reme- dies into any new context.” Malesko, supra, at 74. The Court's precedents now make clear that a Bivens remedy will not be available if there are “ `special factors counselling hesitation in the absence of affrmative action by Congress.' ” Carlson, 446 U. S., at 18 (quoting Bivens, 403 U. S., at 396).

This Court has not defned the phrase “special factors counselling hesitation.” The necessary inference, though, is that the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefts of allowing a dam- ages action to proceed. Thus, to be a “special factor coun- selling hesitation,” a factor must cause a court to hesitate before answering that question in the affrmative.

It is not necessarily a judicial function to establish whole categories of cases in which federal offcers must defend against personal liability claims in the complex sphere of liti- gation, with all of its burdens on some and benefts to others.

It is true that, if equitable remedies prove insuffcient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters in- clude the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies.

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that Congress would want the Judiciary to entertain a dam- ages suit in a given case.

Sometimes there will be doubt because the case arises in a context in which Congress has designed its regulatory au- thority in a guarded way, making it less likely that Congress would want the Judiciary to interfere. See Chappell, supra, at 302 (military); Stanley, supra, at 679 (same); Meyer, supra, at 486 (public purse); Wilkie, supra, at 561–562 (federal land). And sometimes there will be doubt because some other feature of a case—diffcult to predict in advance— causes a court to pause before acting without express con- gressional authorization. In sum, if there are sound reasons to think Congress might doubt the effcacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creat- ing the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdic- tion under Article III.

In a related way, if there is an alternative remedial struc- ture present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action. For if Congress has created “any alternative, existing process for protecting the [injured party's] interest” that itself may “amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, supra, at 550; see also Bush, supra, at 385–388 (recognizing that civil-service regulations provided alternative means for relief); Malesko, 534 U. S., at 73–74 (recognizing that state tort law provided alternative means for relief); Minneci, supra, at 127–130 (same).

It is appropriate now to turn frst to the Bivens claims challenging the conditions of confnement imposed on re- spondents pursuant to the formal policy adopted by the Ex- ecutive Offcials in the wake of the September 11 attacks.

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The Court will refer to these claims as the “detention policy claims.” The detention policy claims allege that petitioners violated respondents' due process and equal protection rights by holding them in restrictive conditions of confne- ment; the claims further allege that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The term “detention policy claims” does not include respondents' claim alleging that Warden Hasty allowed guards to abuse the detainees. That claim will be considered separately, and further, below. At this point, the question is whether, having considered the rele- vant special factors in the whole context of the detention policy claims, the Court should extend a Bivens-type remedy to those claims.

Before allowing respondents' detention policy claims to proceed under Bivens, the Court of Appeals did not perform any special-factors analysis at all. 789 F. 3d, at 237. The reason, it said, was that the special-factors analysis is neces- sary only if a plaintiff asks for a Bivens remedy in a new context. 789 F. 3d, at 234. And in the Court of Appeals' view, the context here was not new. Id., at 235.

To determine whether the Bivens context was novel, the Court of Appeals employed a two-part test. First, it asked whether the asserted constitutional right was at issue in a previous Bivens case. 789 F. 3d, at 234. Second, it asked whether the mechanism of injury was the same mechanism of injury in a previous Bivens case. 789 F. 3d, at 234.

Under the Court of Appeals' approach, if the answer to both questions is “yes,” then the context is not new and no special-factors analysis is required. Ibid.

That approach is inconsistent with the analysis in Malesko.

Before the Court decided that case, it had approved a Bivens action under the Eighth Amendment against federal prison offcials for failure to provide medical treatment. See Carl- son, 446 U. S., at 16, n. 1, 18–19. In Malesko, the plaintiff

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sought relief against a private prison operator in almost par- allel circumstances. 534 U. S., at 64. In both cases, the right at issue was the same: the Eighth Amendment right to be free from cruel and unusual punishment. And in both cases, the mechanism of injury was the same: failure to pro- vide adequate medical treatment. Thus, if the approach fol- lowed by the Court of Appeals is the correct one, this Court should have held that the cases arose in the same context, obviating any need for a special-factors inquiry.

That, however, was not the controlling analytic framework in Malesko. Even though the right and the mechanism of injury were the same as they were in Carlson, the Court held that the contexts were different. 534 U. S., at 70, and

n. 4. The Court explained that special factors counseled

hesitation and that the Bivens remedy was therefore un- available. 534 U. S., at 74.

For similar reasons, the holding of the Court of Appeals in the instant suit is inconsistent with this Court's analytic framework in Chappell. In Dav is, decided before the Court's cautionary instructions with respect to Bivens suits, see supra, at 135–136, the Court had held that an employment- discrimination claim against a Congressman could proceed as a Bivens-type action. Davis, 442 U. S., at 230–231. In Chappell, however, the cautionary rules were applicable; and, as a result, a similar discrimination suit against military offcers was not allowed to proceed. It is the Chappell framework that now controls; and, under it, the Court of Ap- peals erred by holding that this suit did not present a new Bivens context.

The proper test for determining whether a case presents a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaning-

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ful way because of the rank of the offcers involved; the con- stitutional right at issue; the generality or specifcity of the offcial action; the extent of judicial guidance as to how an offcer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the offcer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

In the present suit, respondents' detention policy claims challenge the confnement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil.

Those claims bear little resemblance to the three Bivens claims the Court has approved in the past: a claim against FBI agents for handcuffng a man in his own home without a warrant; a claim against a Congressman for fring his female secretary; and a claim against prison offcials for failure to treat an inmate's asthma. See Bivens, 403 U. S. 388; Davis, 442 U. S. 228; Carlson, 446 U. S. 14. The Court of Appeals therefore should have held that this was a new Bivens con- text. Had it done so, it would have recognized that a special-factors analysis was required before allowing this damages suit to proceed.

After considering the special factors necessarily impli- cated by the detention policy claims, the Court now holds that those factors show that whether a damages action should be allowed is a decision for the Congress to make, not the courts.

With respect to the claims against the Executive Offcials, it must be noted that a Bivens action is not “a proper vehicle for altering an entity's policy.” Malesko, supra, at 74.

Furthermore, a Bivens claim is brought against the individ- ual offcial for his or her own acts, not the acts of others. “[T]he purpose of Bivens is to deter the offcer.” Meyer,

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510 U. S., at 485. Bivens is not designed to hold offcers responsible for acts of their subordinates. See Iqbal, 556

U. S., at 676 (“Government offcials may not be held liable for

the unconstitutional conduct of their subordinates under a theory of respondeat superior”).

Even if the action is confned to the conduct of a particular Executive Offcial in a discrete instance, these claims would call into question the formulation and implementation of a general policy. This, in turn, would necessarily require in- quiry and discovery into the whole course of the discussions and deliberations that led to the policies and governmental acts being challenged. These consequences counsel against allowing a Bivens action against the Executive Offcials, for the burden and demand of litigation might well prevent them—or, to be more precise, future offcials like them—from devoting the time and effort required for the proper dis- charge of their duties. See Cheney v. United States Dist.

Court for D. C., 542 U. S. 367, 382 (2004) (noting “the para- mount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties”).

A closely related problem, as just noted, is that the discov- ery and litigation process would either border upon or di- rectly implicate the discussion and deliberations that led to the formation of the policy in question. See Federal Open Market Comm. v. Merrill, 443 U. S. 340, 360 (1979) (noting that disclosure of Executive Branch documents “could inhibit the free fow of advice, including analysis, reports, and ex- pression of opinion within an agency”). Allowing a damages suit in this context, or in a like context in other circum- stances, would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch. See Clin- ton v. Jones, 520 U. S. 681, 701 (1997) (recognizing that “ `[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional du-

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ties' ” (quoting Loving v. United States, 517 U. S. 748, 757 (1996))). These considerations also counsel against allowing a damages claim to proceed against the Executive Offcials.

See Cheney, supra, at 385 (noting that “special considerations control” when a case implicates “the Executive Branch's in- terests in maintaining the autonomy of its offce and safe- guarding the confdentiality of its communications”).

In addition to this special factor, which applies to the claims against the Executive Offcials, there are three other special factors that apply as well to the detention policy claims against all of the petitioners. First, respondents' de- tention policy claims challenge more than standard “law en- forcement operations.” United States v. Verdugo-Urquidez, 494 U. S. 259, 273 (1990). They challenge as well major ele- ments of the Government's whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensi- tive issues of national security. Were this inquiry to be al- lowed in a private suit for damages, the Bivens action would assume dimensions far greater than those present in Bivens itself, or in either of its two follow-on cases, or indeed in any putative Bivens case yet to come before the Court.

National-security policy is the prerogative of the Congress and President. See U. S. Const., Art. I, § 8; Art. II, §§ 1, 2.

Judicial inquiry into the national-security realm raises “con- cerns for the separation of powers in trenching on matters committed to the other branches.” Christopher v. Harbury, 536 U. S. 403, 417 (2002). These concerns are even more pronounced when the judicial inquiry comes in the context of a claim seeking money damages rather than a claim seeking injunctive or other equitable relief. The risk of personal damages liability is more likely to cause an offcial to second- guess diffcult but necessary decisions concerning national- security policy.

For these and other reasons, courts have shown deference to what the Executive Branch “has determined . . . is `essen- tial to national security.' ” Winter v. Natural Resources De-

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fense Council, Inc., 555 U. S. 7, 24, 26 (2008). Indeed, “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs” unless “Congress specifcally has provided other- wise.” Department of Navy v. Egan, 484 U. S. 518, 530 (1988). Congress has not provided otherwise here.

There are limitations, of course, on the power of the Exec- utive under Article II of the Constitution and in the powers authorized by congressional enactments, even with respect to matters of national security. See, e. g., Hamdi v. Rums- feld, 542 U. S. 507, 527, 532–537 (2004) (plurality opinion) (“Whatever power the United States Constitution envisions for the Executive . . . in times of confict, it most assuredly envisions a role for all three branches when individual liber- ties are at stake”); Boumediene v. Bush, 553 U. S. 723, 798 (2008) (“Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law”). And national-security concerns must not become a talisman used to ward off inconvenient claims—a “label” used to “cover a multitude of sins.” Mitchell v. Forsyth, 472

U. S. 511, 523 (1985). This “ `danger of abuse' ” is even more

heightened given “ `the diffculty of defning' ” the “ `security interest' ” in domestic cases. Ibid. (quoting United States v.

United States Dist. Court for Eastern Dist. of Mich., 407

Even so, the question is only whether “congressionally un- invited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress' failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesi- tation “in the absence of affrmative action by Congress.” Bivens, 403 U. S., at 396.

Furthermore, in any inquiry respecting the likely or prob- able intent of Congress, the silence of Congress is relevant;

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and here that silence is telling. In the almost 16 years since September 11, the Federal Government's responses to that terrorist attack have been well documented. Congressional interest has been “frequent and intense,” Schweiker, supra, at 425, and some of that interest has been directed to the conditions of confnement at issue here. Indeed, at Con- gress' behest, the Department of Justice's Offce of the In- spector General compiled a 300-page report documenting the conditions in the MDC in great detail. See 789 F. 3d, at 279 (opinion of Raggi, J.) (noting that the USA PATRIOT Act required “the Department's Inspector General to review and report semi-annually to Congress on any identifed abuses of civil rights and civil liberties in fghting terrorism”). Nev- ertheless, “[a]t no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit.” Schweiker, 487 U. S., at 426.

This silence is notable because it is likely that high-level policies will attract the attention of Congress. Thus, when Congress fails to provide a damages remedy in circumstances like these, it is much more diffcult to believe that “congres- sional inaction” was “inadvertent.” Id., at 423.

It is of central importance, too, that this is not a case like Bivens or Davis in which “it is damages or nothing.” Bivens, supra, at 410 (Harlan, J., concurring in judgment); Davis, 442 U. S., at 245. Unlike the plaintiffs in those cases, respondents do not challenge individual instances of discrim- ination or law enforcement overreach, which due to their very nature are diffcult to address except by way of dam- ages actions after the fact. Respondents instead challenge large-scale policy decisions concerning the conditions of con- fnement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief.

And in addition to that, we have left open the question whether they might be able to challenge their confnement conditions via a petition for a writ of habeas corpus. See Bell v. Wolfsh, 441 U. S. 520, 526–527, n. 6 (1979) (“[W]e

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leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confnement”); Preiser v. Rodriguez, 411 U. S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitu- tional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making cus- tody illegal”).

Indeed, the habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief than a suit for money damages. A successful habeas peti- tion would have required offcials to place respondents in less-restrictive conditions immediately; yet this damages suit (As in Bell and remains unresolved some 15 years later.

Preiser, the Court need not determine the scope or availabil- ity of the habeas corpus remedy, a question that is not before the Court and has not been briefed or argued.) In sum, re- spondents had available to them “ `other alternative forms of judicial relief.' ” Minneci, 565 U. S., at 124. And when alternative methods of relief are available, a Bivens remedy usually is not. See Bush, 462 U. S., at 386–388; Schweiker, supra, at 425–426; Malesko, 534 U. S., at 73–74; Minneci, supra, at 125–126.

There is a persisting concern, of course, that absent a Bivens remedy there will be insuffcient deterrence to pre- vent offcers from violating the Constitution. In circum- stances like those presented here, however, the stakes on both sides of the argument are far higher than in past cases the Court has considered. If Bivens liability were to be im- posed, high offcers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and diffculties of later litigation might intrude upon and interfere with the proper exercise of their offce.

On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to

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There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high offcials to make the lawful decisions necessary to protect the Nation in times of great peril. Cf. Stanley, 483 U. S., at 681 (noting that the special-factors analysis in that case turned on “how much occasional, unintended im- pairment of military discipline one is willing to tolerate”).

The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents' detention policy claims to proceed under Bivens.

One of respondents' claims under Bivens requires a differ- ent analysis: the prisoner abuse claim against the MDC's warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents.

The warden argues, as an initial matter, that the complaint does not “ `state a claim to relief that is plausible on its face.' ” Iqbal, 556 U. S., at 678 (quoting Bell Atlantic Corp. v. Twom- bly, 550 U. S. 544, 570 (2007)). Applying its precedents, the Court of Appeals held that the substantive standard for the suffciency of the claim is whether the warden showed “delib- erate indifference” to prisoner abuse. 789 F. 3d, at 249–250.

The parties appear to agree on this standard, and, for purposes of this case, the Court assumes it to be correct.

The complaint alleges that guards routinely abused re- spondents; that the warden encouraged the abuse by refer- ring to respondents as “ `terrorists,' ” App. to Pet. for Cert. in No. 15–1359, p. 280a; that he prevented respondents from using normal grievance procedures; that he stayed away from the Unit to avoid seeing the abuse; that he was made aware of the abuse via “inmate complaints, staff complaints,

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hunger strikes, and suicide attempts,” id., at 260a; that he ignored other “direct evidence of [the] abuse, including logs and other offcial [records],” id., at 280a; that he took no ac- tion “to rectify or address the situation,” id., at 260a; and that the abuse resulted in the injuries described above, see supra, at 128. These allegations—assumed here to be true, subject to proof at a later stage—plausibly show the war- den's deliberate indifference to the abuse. Consistent with the opinion of every judge in this case to have considered the question, including the dissenters in the Court of Ap- peals, the Court concludes that the prisoner abuse allega- tions against Warden Hasty state a plausible ground to fnd a constitutional violation if a Bivens remedy is to be implied.

Warden Hasty argues, however, that Bivens ought not to be extended to this instance of alleged prisoner abuse. As noted above, the frst question a court must ask in a case like this one is whether the claim arises in a new Bivens context,

i. e., whether “the case is different in a meaningful way from

previous Bivens cases decided by this Court.” Supra, at 139.

It is true that this case has signifcant parallels to one of the Court's previous Bivens cases, Carlson v. Green, 446

U. S. 14. There, the Court did allow a Bivens claim for pris-

oner mistreatment—specifcally, for failure to provide medi- cal care. And the allegations of injury here are just as com- pelling as those at issue in Carlson. This is especially true given that the complaint alleges serious violations of Bureau of Prisons policy. See 28 CFR § 552.20 (2016) (providing that prison staff may use force “only as a last alternative after all other reasonable efforts to resolve a situation have failed” and that staff may “use only that amount of force necessary to [ensure prison safety and security]”); § 552.22( j) (“All incidents involving the use of force . . . must be carefully documented”); § 542.11 (requiring the warden to investigate certain complaints of inmate abuse).

Yet even a modest extension is still an extension. And this case does seek to extend Carlson to a new context. As

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noted above, a case can present a new context for Bivens purposes if it implicates a different constitutional right; if judicial precedents provide a less meaningful guide for off- cial conduct; or if there are potential special factors that were not considered in previous Bivens cases. See supra, at 135–136.

The constitutional right is different here, since Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth. See 446 U. S., at 16. And the judi- cial guidance available to this warden, with respect to his supervisory duties, was less developed. The Court has long made clear the standard for claims alleging failure to provide medical treatment to a prisoner—“deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U. S. 97, 104 (1976). The standard for a claim alleging that a warden al- lowed guards to abuse detainees is less clear under the Court's precedents.

This case also has certain features that were not consid- ered in the Court's previous Bivens cases and that might discourage a court from authorizing a Bivens remedy. As noted above, the existence of alternative remedies usually precludes a court from authorizing a Bivens action. Supra, at 137. And there might have been alternative remedies available here, for example, a writ of habeas corpus, Wolfsh, 441 U. S., at 526, n. 6; an injunction requiring the warden to bring his prison into compliance with the regulations dis- cussed above; or some other form of equitable relief.

Furthermore, legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation. See supra, at 137. Some 15 years after Carl- son was decided, Congress passed the Prison Litigation Re- form Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court.

See 42 U. S. C. § 1997e. So it seems clear that Congress had specifc occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This

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Court has said in dicta that the Act's exhaustion provisions would apply to Bivens suits. See Porter v. Nussle, 534 U. S.

516, 524 (2002). But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.

The differences between this claim and the one in Carlson are perhaps small, at least in practical terms. Given this Court's expressed caution about extending the Bivens rem- edy, however, the new-context inquiry is easily satisfed.

Some differences, of course, will be so trivial that they will not suffce to create a new Bivens context. But here the differences identifed above are at the very least meaningful ones. Thus, before allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special-factors analysis. It should have analyzed whether there were alternative remedies available or other “sound reasons to think Congress might doubt the effcacy or neces- sity of a damages remedy” in a suit like this one. Supra, at 137.

Although the Court could perform that analysis in the frst instance, the briefs have concentrated almost all of their ef- forts elsewhere Given the absence of a comprehensive pres- entation by the parties, and the fact that the Court of Appeals did not conduct the analysis, the Court declines to perform the special-factors analysis itself. The better course is to vacate the judgment below, allowing the Court of Appeals or the District Court to do so on remand.

One issue remains to be addressed: the claim that petition- ers are subject to liability for civil conspiracy under 42

U. S. C. § 1985(3). Unlike the prisoner abuse claim just dis-

cussed, this claim implicates the activities of all the petition-

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ers—the Executive Offcials as well as the Wardens—in creating the conditions of confnement at issue here.

The civil-conspiracy prohibition contained in § 1985(3) was enacted as a signifcant part of the civil rights legislation passed in the aftermath of the Civil War. See Carpenters v.

Scott, 463 U. S. 825, 834–837 (1983) (detailing the legislative history of § 1985(3)); Griffn v. Breckenridge, 403 U. S. 88, 99– 101 (1971) (same); Great American Fed. Sav. & Loan Assn.

v. Novotny, 442 U. S. 366, 379 (1979) (Powell, J., concurring)

(describing § 1985(3) as a “Civil War Era remedial statute”).

The statute imposes liability on two or more persons who “conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws.” § 1985(3). In the instant suit, respondents allege that peti- tioners violated the statute by “agreeing to implement a pol- icy” under which respondents would be detained in harsh conditions “because of their race, religion, ethnicity, and na- tional origin.” App. to Pet. for Cert. in No. 15–1359, at 347a.

Assuming these allegations to be true and well pleaded, the question is whether petitioners are entitled to qualifed immunity.

The qualifed immunity rule seeks a proper balance be- tween two competing interests. On one hand, damages suits “may offer the only realistic avenue for vindication of consti- tutional guarantees.” Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982). “On the other hand, permitting damages suits against government offcials can entail substantial social costs, including the risk that fear of personal monetary liabil- ity and harassing litigation will unduly inhibit offcials in the discharge of their duties.” Anderson v. Creighton, 483 U. S.

635, 638 (1987). As one means to accommodate these two objectives, the Court has held that Government offcials are entitled to qualifed immunity with respect to “discretionary functions” performed in their offcial capacities. Ibid. The doctrine of qualifed immunity gives offcials “breathing

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room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U. S. 731, 743 (2011).

The Court's cases provide additional instruction to defne and implement that immunity. Whether qualifed immunity can be invoked turns on the “objective legal reasonableness” of the offcial's acts. Harlow, supra, at 819. And reason- ableness of offcial action, in turn, must be “assessed in light of the legal rules that were clearly established at the time [the action] was taken.” Anderson, supra, at 639 (internal quotation marks omitted); see also Mitchell, 472 U. S., at 528.

This requirement—that an offcial loses qualifed immunity only for violating clearly established law—protects offcials accused of violating “extremely abstract rights.” Ander- son, supra, at 639.

The Fourth Amendment provides an example of how quali- fed immunity functions with respect to abstract rights. By its plain terms, the Amendment forbids unreasonable searches and seizures, yet it may be diffcult for an offcer to know whether a search or seizure will be deemed reasonable given the precise situation encountered. See Saucier v.

Katz, 533 U. S. 194, 205 (2001) (“It is sometimes diffcult for an offcer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the offcer confronts”). For this reason, “[t]he dispositive question is `whether the violative nature of particular conduct is clearly established.' ” Mullenix v. Luna, 577 U. S. 7, 12 (2015) (per curiam) (quoting Ashcroft, supra, at 742).

It is not necessary, of course, that “the very action in ques- tion has previously been held unlawful.” Anderson, supra, at 640. That is, an offcer might lose qualifed immunity even if there is no reported case “directly on point.” Ash- croft, supra, at 741. But “in the light of pre-existing law,” the unlawfulness of the offcer's conduct “must be apparent.” Anderson, supra, at 640. To subject offcers to any broader liability would be to “disrupt the balance that our cases

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strike between the interests in vindication of citizens' consti- tutional rights and in public offcials' effective performance of their duties.” Davis v. Scherer, 468 U. S. 183, 195 (1984).

For then, both as a practical and legal matter, it would be diffcult for offcials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Ibid.

In light of these concerns, the Court has held that qualifed immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U. S.

335, 341 (1986). To determine whether a given offcer falls into either of those two categories, a court must ask whether it would have been clear to a reasonable offcer that the al- leged conduct “was unlawful in the situation he confronted.” Saucier, supra, at 202. If so, then the defendant offcer must have been either incompetent or else a knowing viola- tor of the law, and thus not entitled to qualifed immunity.

If not, however—i. e., if a reasonable offcer might not have known for certain that the conduct was unlawful—then the offcer is immune from liability.

Under these principles, it must be concluded that reason- able offcials in petitioners' positions would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.

At least two aspects of the complaint indicate that peti- tioners' potential liability for this statutory offense would not have been known or anticipated by reasonable offcials in their position. First, the conspiracy recited in the complaint is alleged to have been between or among offcers in the same branch of the Government (the Executive Branch) and in the same Department (the Department of Justice). Sec- ond, the discussions were the preface to, and the outline of, a general and far-reaching policy.

As to the fact that these offcers were in the same Depart- ment, an analogous principle discussed in the context of anti-

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trust law is instructive. The Court's precedent indicates that there is no unlawful conspiracy when offcers within a single corporate entity consult among themselves and then adopt a policy for the entity. See Copperweld Corp.

v. Independence Tube Corp., 467 U. S. 752, 769–771 (1984).

Under this principle—sometimes called the intracorporate- conspiracy doctrine—an agreement between or among agents of the same legal entity, when the agents act in their offcial capacities, is not an unlawful conspiracy. Ibid. The rule is derived from the nature of the conspiracy prohibition.

Conspiracy requires an agreement—and in particular an agreement to do an unlawful act—between or among two or more separate persons. When two agents of the same legal entity make an agreement in the course of their offcial du- ties, however, as a practical and legal matter their acts are attributed to their principal. And it then follows that there has not been an agreement between two or more separate people. See id., at 771 (analogizing to “a multiple team of horses drawing a vehicle under the control of a single driver”).

To be sure, this Court has not given its approval to this doctrine in the specifc context of § 1985(3). See Great American, 442 U. S., at 372, n. 11. There is a division in the courts of appeals, moreover, respecting the validity or correctness of the intracorporate-conspiracy doctrine with reference to § 1985 conspiracies. See Hull v. Shuck, 501

U. S. 1261, 1261–1262 (1991) (White, J., dissenting from denial

of certiorari) (discussing the Circuit split); Bowie v. Maddox, 642 F. 3d 1122, 1130–1131 (CADC 2011) (detailing a long- standing split about whether the intracorporate-conspiracy doctrine applies to civil rights conspiracies). Nothing in this opinion should be interpreted as either approving or dis- approving the intracorporate-conspiracy doctrine's applica- tion in the context of an alleged § 1985(3) violation. The Court might determine, in some later case, that different considerations apply to a conspiracy respecting equal protec- tion guarantees, as distinct from a conspiracy in the antitrust

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context. Yet the fact that the courts are divided as to whether or not a § 1985(3) conspiracy can arise from offcial discussions between or among agents of the same entity demonstrates that the law on the point is not well estab- lished. When the courts are divided on an issue so central to the cause of action alleged, a reasonable offcial lacks the notice required before imposing liability. See Wilson v.

Layne, 526 U. S. 603, 618 (1999) (noting that it would be “un- fair” to subject offcers to damages liability when even “judges . . . disagree”); Reichle v. Howards, 566 U. S. 658, 669–670 (2012) (same).

In addition to the concern that agents of the same legal entity are not distinct enough to conspire with one another, there are other sound reasons to conclude that conversations and agreements between and among federal offcials in the same Department should not be the subject of a private cause of action for damages under § 1985(3). To state a claim under § 1985(3), a plaintiff must frst show that the de- fendants conspired—that is, reached an agreement—with one another. See Carpenters, 463 U. S., at 828 (stating that the elements of a § 1985(3) claim include “a conspiracy”).

Thus, a § 1985(3) claim against federal offcials by necessity implicates the substance of their offcial discussions.

As indicated above with respect to other claims in this suit, open discussion among federal offcers is to be encour- aged, so that they can reach consensus on the policies a de- partment of the Federal Government should pursue. See supra, at 141–142. Close and frequent consultations to facil- itate the adoption and implementation of policies are essen- tial to the orderly conduct of governmental affairs. Were those discussions, and the resulting policies, to be the basis for private suits seeking damages against the offcials as indi- viduals, the result would be to chill the interchange and dis- course that is necessary for the adoption and implementation of governmental policies. See Cheney, 542 U. S., at 383 (dis- cussing the need for confdential communications among Ex- ecutive Branch offcials); Merrill, 443 U. S., at 360 (same).

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These considerations suggest that offcials employed by the same governmental department do not conspire when they speak to one another and work together in their offcial capacities. Whether that contention should prevail need not be decided here. It suffces to say that the question is suff- ciently open so that the offcials in this suit could not be certain that § 1985(3) was applicable to their discussions and actions. Thus, the law respondents seek to invoke cannot be clearly established. It follows that reasonable offcers in petitioners' positions would not have known with any cer- tainty that the alleged agreements were forbidden by law.

See Saucier, 533 U. S., at 202. Petitioners are entitled to qualifed immunity with respect to the claims under 42

* * *

If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to con- done the treatment to which they contend they were sub- jected. The question before the Court, however, is not whether petitioners' alleged conduct was proper, nor whether it gave decent respect to respondents' dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.

Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above.

The question with respect to the § 1985(3) claim is whether a reasonable offcer in petitioners' position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative.

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The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for fur- ther proceedings.

It is so ordered.

Justice Sotomayor, Justice Kagan, and Justice Gor- such took no part in the consideration or decision of these cases.

Justice Thomas, concurring in part and concurring in the judgment.

I join the Court's opinion except for Part IV–B. I write separately to express my view on the Court's decision to re- mand some of respondents' claims under Bivens v. Six Un- known Fed. Narcotics Agents, 403 U. S. 388 (1971), and my concerns about our qualifed immunity precedents.

With respect to respondents' Bivens claims, I join the opinion of the Court to the extent it reverses the Second Circuit's ruling. The Court correctly applies our precedents to hold that Bivens does not supply a cause of action against petitioners for most of the alleged Fourth and Fifth Amend- ment violations. It also correctly recognizes that respond- ents' claims against petitioner Dennis Hasty seek to extend Bivens to a new context. See ante, at 147.

I concur in the judgment of the Court vacating the Court of Appeals' judgment with regard to claims against Hasty.

Ante, at 156. I have previously noted that “ `Bivens is a relic of the heady days in which this Court assumed common- law powers to create causes of action.' ” Wilkie v. Robbins, 551 U. S. 537, 568 (2007) (concurring opinion) (quoting Cor- rectional Services Corp. v. Malesko, 534 U. S. 61, 75 (2001) (Scalia, J., concurring)). I have thus declined to “extend Bivens even [where] its reasoning logically applied,” thereby

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limiting “Bivens and its progeny . . . to the precise circum- stances that they involved.” Wilkie, supra, at 568 (internal quotation marks omitted). This would, in most cases, mean a reversal of the judgment of the Court of Appeals is in order. However, in order for there to be a controlling judg- ment in this suit, I concur in the judgment vacating and re- manding the claims against petitioner Hasty as that disposi- tion is closest to my preferred approach.

As for respondents' claims under 42 U. S. C. § 1985(3), I join Part V of the Court's opinion, which holds that respond- ents are entitled to qualifed immunity. The Court correctly applies our precedents, which no party has asked us to recon- sider. I write separately, however, to note my growing con- cern with our qualifed immunity jurisprudence.

The Civil Rights Act of 1871, of which § 1985(3) and the more frequently litigated § 1983 were originally a part, es- tablished causes of action for plaintiffs to seek money dam- ages from Government offcers who violated federal law.

See §§ 1, 2, 17 Stat. 13. Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U. S.

335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well estab- lished in 1871 . . . that `we presume that Congress would have specifcally so provided had it wished to abolish' them.” Buckley v. Fitzsimmons, 509 U. S. 259, 268 (1993); accord, Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically ac- corded the relevant offcial” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), unless the statute provides some reason to think that Con- gress did not preserve the defense, see Tower v. Glover, 467

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In some contexts, we have conducted the common-law in- quiry that the statute requires. See Wyatt v. Cole, 504 U. S.

158, 170 (1992) (Kennedy, J., concurring). For example, we have concluded that legislators and judges are absolutely im- mune from liability under § 1983 for their offcial acts because that immunity was well established at common law in 1871.

See Tenney v. Brandhove, 341 U. S. 367, 372–376 (1951) (legislators); Pierson v. Ray, 386 U. S. 547, 553–555 (1967) ( judges). We have similarly looked to the common law in holding that a prosecutor is immune from suits relating to the “judicial phase of the criminal process,” Imbler, supra, at 430; Burns v. Reed, 500 U. S. 478, 489–492 (1991); but see Kalina v. Fletcher, 522 U. S. 118, 131–134 (1997) (Scalia, J., joined by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common-law rules), although not from suits relating to the prosecutor's advice to police off- cers, Burns, supra, at 493.

In developing immunity doctrine for other executive off- cers, we also started off by applying common-law rules. In Pierson, we held that police offcers are not absolutely im- mune from a § 1983 claim arising from an arrest made pursu- ant to an unconstitutional statute because the common law never granted arresting offcers that sort of immunity. 386

U. S., at 555. Rather, we concluded that police offcers could

assert “the defense of good faith and probable cause” against the claim for an unconstitutional arrest because that defense was available against the analogous torts of “false arrest and imprisonment” at common law. Id., at 557.

In further elaborating the doctrine of qualifed immunity for executive offcials, however, we have diverged from the historical inquiry mandated by the statute. See Wyatt, supra, at 170 (Kennedy, J., concurring); accord, Crawford- El v. Britton, 523 U. S. 574, 611 (1998) (Scalia, J., joined by Thomas, J., dissenting). In the decisions following Pierson, we have “completely reformulated qualifed immunity along principles not at all embodied in the common law.” Ander-

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son v. Creighton, 483 U. S. 635, 645 (1987) (discussing Harlow

v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking

whether the common law in 1871 would have accorded immu- nity to an offcer for a tort analogous to the plaintiff's claim under § 1983, we instead grant immunity to any offcer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577 U. S. 7, 11 (2015) (per cur iam) (internal quotation marks omitted); Taylor v.

Barkes, 575 U. S. 822, 825 (2015) (per curiam) (a Government offcial is liable under the 1871 Act only if “ `existing prece- dent . . . placed the statutory or constitutional question be- yond debate' ” (quoting Ashcroft v. al-Kidd, 563 U. S. 731, 741 (2011))). We apply this “clearly established” standard “across the board” and without regard to “the precise nature of the various offcials' duties or the precise character of the particular rights alleged to have been violated.” Anderson, supra, at 641–643 (internal quotation marks omitted).* We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence sup- ports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine.

See generally Baude, Is Qualifed Immunity Unlawful? 106 Cal. L. Rev. 45, 51–62 (2018).

Because our analysis is no longer grounded in the common- law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Malley, 475 U. S., at 342; see Burns, supra, at 493. Our qualifed immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to

*Although we frst formulated the “clearly established” standard in Bivens cases like Harlow and Anderson, we have imported that standard directly into our 1871 Act cases. See, e. g., Pearson v. Callahan, 555 U. S. 223, 243–244 (2009) (applying the clearly established standard to a § 1983 claim).

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make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted); see also Tower, supra, at 922–923 (“We do not have a license to establish immunities from” suits brought under the Act “in the interests of what we judge to be sound public policy”). We have acknowledged, in fact, that the “clearly established” standard is designed to “protec[t] the balance between vindication of constitutional rights and government offcials' effective performance of their duties.” Reichle v. Howards, 566 U. S. 658, 664 (2012) (internal quotation marks omitted); Harlow, supra, at 807 (explaining that “the recognition of a qualifed immunity de- fense . . . refected an attempt to balance competing values”).

The Constitution assigns this kind of balancing to Congress, not the Courts.

In today's decision, we continue down the path our prece- dents have marked. We ask “whether it would have been clear to a reasonable offcer that the alleged conduct was unlawful in the situation he confronted,” ante, at 152 (inter- nal quotation marks omitted), rather than whether offcers in petitioners' positions would have been accorded immunity at common law in 1871 from claims analogous to respond- ents'. Even if we ultimately reach a conclusion consistent with the common-law rules prevailing in 1871, it is mere for- tuity. Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substi- tute our own policy preferences for the mandates of Con- gress. In an appropriate case, we should reconsider our qualifed immunity jurisprudence.

Justice Breyer, with whom Justice Ginsburg joins, dissenting.

In Bivens v. Six Unknown Fed. Narcotics Agents, 403

U. S. 388 (1971), this Court held that the Fourth Amendment

provides a damages remedy for those whom federal offcials have injured as a result of an unconstitutional search or sei- zure. In Davis v. Passman, 442 U. S. 228 (1979), the Court held that the Fifth Amendment provides a damages remedy

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to an individual dismissed by her employer (a Member of Congress) on the basis of her sex in violation of the equal protection component of that Amendment's Due Process Clause. And in Carlson v. Green, 446 U. S. 14 (1980), the Court held that the Eighth Amendment provides a damages remedy to a prisoner who died as a result of prison offcials' deliberate indifference to his medical needs, in violation of the Amendment's prohibition against cruel and unusual punishment.

It is by now well established that federal law provides damages actions at least in similar contexts, where claims of constitutional violation arise. Congress has ratifed Bivens actions, plaintiffs frequently bring them, courts accept them, and scholars defend their importance. See J. Pfander, Con- stitutional Torts and the War on Terror (2017) (canvassing the history of Bivens and cataloging cases). Moreover, the courts, in order to avoid deterring federal offcials from prop- erly performing their work, have developed safeguards for defendants, including the requirement that plaintiffs plead “plausible” claims, Ashcroft v. Iqbal, 556 U. S. 662, 679 (2009), as well as the defense of “qualifed immunity,” which frees federal offcials from both threat of liability and involvement in the lawsuit, unless the plaintiffs establish that offcials have violated “ `clearly established . . . constitutional rights,' ” id., at 672 (quoting Harlow v. Fitzgerald, 457 U. S.

800, 818 (1982)). “[This] Court has been reluctant to extend Bivens liability `to any new context or new category of de- fendants.' ” Iqbal, supra, at 675 (quoting Correctional Serv- ices Corp. v. Malesko, 534 U. S. 61, 68 (2001)). But the Court has made clear that it would not narrow Bivens' existing scope. See FDIC v. Meyer, 510 U. S. 471, 485 (1994) (guard- ing against “the evisceration of the Bivens remedy” so that its “deterrent effects . . . would [not] be lost”).

The plaintiffs before us today seek damages for unconstitu- tional conditions of confnement. They alleged that federal offcials slammed them against walls, shackled them, exposed them to nonstop lighting, lack of hygiene, and the like, all

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based upon invidious discrimination and without penological justifcation. See ante, at 128–129. In my view, these claims are well pleaded, state violations of clearly estab- lished law, and fall within the scope of longstanding Bivens law. For those reasons, I would affrm the judgment of the Court of Appeals. I shall discuss at some length what I be- lieve is the most important point of disagreement. The Court, in my view, is wrong to hold that permitting a consti- tutional tort action here would “extend” Bivens, applying it in a new context. To the contrary, I fear that the Court's holding would signifcantly shrink the existing Bivens con- texts, diminishing the compensatory remedy constitutional tort law now offers to harmed individuals.

I shall explain why I believe this suit falls well within the scope of traditional constitutional tort law and why I cannot agree with the Court's arguments to the contrary. I recog- nize, and write separately about, the strongest of the Court's arguments, namely, the fact that the plaintiffs' claims con- cern detention that took place soon after a serious attack on the United States and some of them concern actions of high- level Government offcials. While these facts may affect the substantive constitutional questions (e. g., were any of the conditions “ legitimate”?) or the scope of the qualified- immunity defense, they do not extinguish the Bivens action itself. If I may paraphrase Justice Harlan, concurring in Bivens: In wartime as well as in peacetime, “it is important, in a civilized society, that the judicial branch of the Nation's government stand ready to afford a remedy” “for the most fagrant and patently unjustifed,” unconstitutional “abuses of offcial power.” 403 U. S., at 410–411 (opinion concurring in judgment); cf. Boumediene v. Bush, 553 U. S. 723, 798 (2008).

The majority opinion well summarizes the particular claims that the plaintiffs make in this suit. All concern the conditions of their confnement, which began soon after the

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September 11, 2001, attacks and “lasted for days and weeks, then stretching into months.” Ante, at 125. At some point, the plaintiffs allege, all the defendants knew that they had nothing to do with the September 11 attacks but continued to detain them anyway in harsh conditions. Offcial Govern- ment policy, both before and after the defendants became aware of the plaintiffs' innocence, led to the plaintiffs being held in “tiny cells for over 23 hours a day” with lights continuously left on, “shackled” when moved, often “strip searched,” and “denied access to most forms of communica- tion with the outside world.” Ante, at 128 (internal quota- tion marks omitted). The defendants detained the plaintiffs in these conditions on the basis of their race or religion and without justifcation.

Moreover, the prison wardens were aware of, but deliber- ately indifferent to, certain unoffcial activities of prison guards involving a pattern of “physical and verbal abuse,” such as “slam[ming] detainees into walls; twist[ing] their arms, wrists, and fngers; [breaking] their bones;” and sub- jecting them to verbal taunts. Ibid. (internal quotation marks omitted).

The plaintiffs' complaint alleges that all the defendants— high-level Department of Justice offcials and prison wardens alike—were directly responsible for the offcial confnement policy, which, in some or all of the aspects mentioned, vio- lated the due process and equal protection components of the Fifth Amendment. The complaint adds that, insofar as the prison wardens were deliberately indifferent to the unoffcial conduct of the guards, they violated the Fourth and the Fifth Amendments.

I would hold that the complaint properly alleges constitu- tional torts, i. e., Bivens actions for damages.

The Court's holdings in Bivens, Carlson, and Davis rest upon four basic legal considerations. First, the Bivens

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Court referred to longstanding Supreme Court precedent stating or suggesting that the Constitution provides federal courts with considerable legal authority to use traditional remedies to right constitutional wrongs. That precedent begins with Marbury v. Madison, 1 Cranch 137 (1803), which effectively placed upon those who would deny the existence of an effective legal remedy the burden of showing why their case was special. Chief Justice John Marshall wrote for the Court that

“[t]he very essence of civil liberty [lies] in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Id., at 163.

The Chief Justice referred to Blackstone's Commentaries stating that there

“ `is a general and indisputable rule, that where there is a legal right, there is also a legal remedy . . . [and that] it is a settled and invariable principle in the laws of Eng- land, that every right, when withheld, must have a rem- edy, and every injury its proper redress.' ” Ibid.

“The government of the United States has been em- phatically termed a government of laws, and not of men.

It will [not] deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Ibid.

He concluded for the Court that there must be something “peculiar” (i. e., special) about a case that warrants “exclu[d- ing] the injured party from legal redress [and placing it within] that class of cases which come under the description of damnum absque injuria—a loss without an injury.” Id., at 163–164; but cf. id., at 164 (placing “political” questions in the latter, special category).

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Breyer, J., dissenting Much later, in Bell v. Hood, 327 U. S. 678, 684 (1946), the

Court wrote that,

“where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the neces- sary relief.”

See also Bivens, 403 U. S., at 392 (citing opinions of Justices Cardozo and Holmes to similar effect).

The Bivens Court reiterated these principles and con- frmed that the appropriate remedial “ `adjust[ment]' ” in the case before it was an award of money damages, the “remedial mechanism normally available in the federal courts.” Id., at 392, 397. Justice Harlan agreed, adding that, since Con- gress' “general” statutory “grant of jurisdiction” authorized courts to grant equitable relief in cases arising under federal jurisdiction, courts likewise had the authority to award dam- ages—the “traditional remedy at law”—in order to “vindi- cate the interests of the individual” protected by the Bill of Rights. Id., at 405–407 (opinion concurring in judgment).

Second, our cases have recognized that Congress' silence on the subject indicates a willingness to leave this matter to the courts. In Bivens, the Court noted, as an argument favoring its conclusion, the absence of an “explicit congres- sional declaration that persons injured by a federal offcer's violation of the Fourth Amendment may not recover money damages from the agents.” Id., at 397. Similarly, in Davis, the Court stressed that there was “no evidence . . . that Con- gress meant . . . to foreclose” a damages remedy. 442 U. S., at 247. In Carlson, the Court went further, observing that not only was there no sign “that Congress meant to pre-empt a Bivens remedy,” but there was also “clear” evidence that Congress intended to preserve it. 446 U. S., at 19–20.

Third, our Bivens cases acknowledge that a constitutional tort may not lie when “special factors counse[l] hesitation” and when Congress has provided an adequate alternative

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remedy. 446 U. S., at 18–19. The relevant special factors in those cases included whether the court was faced “with a question of `federal fscal policy,' ” Bivens, supra, at 396, or a risk of “deluging federal courts with claims,” Davis, supra, at 248 (internal quotation marks omitted). Carlson ac- knowledged an additional factor—that damages suits “might inhibit [federal offcials'] efforts to perform their offcial du- ties”—but concluded that “the qualifed immunity accorded [federal offcials] under [existing law] provides adequate pro- tection.” 446 U. S., at 19.

Fourth, as the Court recognized later in Carlson, a Bivens remedy was needed to cure what would, without it, amount to a constitutional anomaly. Long before this Court incor- porated many of the Bill of Rights' guarantees against the States, see Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992), federal civil rights statutes afforded a damages remedy to any person whom a state offcial deprived of a federal constitutional right, see 42

U. S. C. § 1983; Monroe v. Pape, 365 U. S. 167, 171–187 (1961)

(describing this history). But federal statutory law did not provide a damages remedy to a person whom a federal off- cial had deprived of that same right, even though the Bill of Rights was at the time of the founding primarily aimed at constraining the Federal Government. Thus, a person harmed by an unconstitutional search or seizure might sue a city mayor, a state legislator, or even a Governor. But that person could not sue a federal agent, a national legislator, or a Justice Department offcial for an identical offense. “[Our] `constitutional design,' ” the Court wrote, “would be stood on its head if federal offcials did not face at least the same liability as state offcials guilty of the same constitutional transgression.” Carlson, supra, at 22 (quoting Butz v. Eco- nomou, 438 U. S. 478, 504 (1978)).

The Bivens Court also recognized that the Court had pre- viously inferred damages remedies caused by violations of certain federal statutes that themselves did not explicitly au-

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thorize damages remedies. 403 U. S., at 395–396. At the same time, Bivens, Davis, and Carlson treat the courts' power to derive a damages remedy from a constitutional pro- vision not as included within a power to fnd a statute-based damages remedy but as fowing from those statutory cases a fortiori.

As the majority opinion points out, this Court in more re- cent years has indicated that “expanding the Bivens remedy is now a `disfavored' judicial activity.” Ante, at 135 (quoting Iqbal, 556 U. S., at 675; emphasis added). Thus, it has held that the remedy is not available in the context of suits against military offcers, see Chappell v. Wallace, 462 U. S.

296, 298–300 (1983); United States v. Stanley, 483 U. S. 669, 683–684 (1987); in the context of suits against privately oper- ated prisons and their employees, see Minneci v. Pollard, 565 U. S. 118, 120 (2012); Malesko, 534 U. S., at 70–73; in the context of suits seeking to vindicate procedural, rather than substantive, constitutional protections, see Schweiker v.

Chilicky, 487 U. S. 412, 423 (1988); and in the context of suits seeking to vindicate two quite different forms of important substantive protection, one involving free speech, see Bush

v. Lucas, 462 U. S. 367, 368 (1983), and the other involving

protection of land rights, see Wilkie v. Robbins, 551 U. S.

537, 551 (2007). Each of these cases involved a context that differed from that of Bivens, Davis, and Carlson with re- spect to the kind of defendant, the basic nature of the right, or the kind of harm suffered. That is to say, as we have explicitly stated, these cases were “fundamentally different from anything recognized in Bivens or subsequent cases.” Malesko, supra, at 70 (emphasis added). In each of them, the plaintiffs were asking the Court to “ `authoriz[e] a new kind of federal litigation.' ” Wilkie, supra, at 550 (empha- sis added).

Thus the Court, as the majority opinion says, repeatedly wrote that it was not “expanding” the scope of the Bivens remedy. Ante, at 135. But the Court nowhere suggested

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that it would narrow Bivens' existing scope. In fact, to di- minish any ambiguity about its holdings, the Court set out a framework for determining whether a claim of constitutional violation calls for a Bivens remedy. See Wilkie, supra, at 549–550. At step one, the court must determine whether the case before it arises in a “new context,” that is, whether it involves a “new category of defendants,” Malesko, supra, at 68, or (presumably) a signifcantly different kind of consti- tutional harm, such as a purely procedural harm, a harm to speech, or a harm caused to physical property. If the con- text is new, then the court proceeds to step two and asks “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U. S., at 550. If there is none, then the court proceeds to step three and asks whether there are “ `any special factors counselling hesita- tion before authorizing a new kind of federal litigation.' ” Ibid.

Precedent makes this framework applicable here. I would apply it. And, doing so, I cannot get past step one.

This suit, it seems to me, arises in a context similar to those in which this Court has previously permitted Bivens actions.

1

The context here is not “new,” Wilkie, supra, at 550, or “fundamentally different” from our previous Bivens cases, Malesko, supra, at 70. First, the plaintiffs are civilians, not members of the military. They are not citizens, but the Constitution protects noncitizens against serious mistreat- ment, as it protects citizens. See United States v. Verdugo- Urquidez, 494 U. S. 259, 271 (1990) (“[A]liens receive con- stitutional protections when they have come within the territory of the United States and developed substantial con- nections with this country”). Some or all of the plaintiffs

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Breyer, J., dissenting here may have been illegally present in the United States.

But that fact cannot justify physical mistreatment. Nor does anyone claim that that fact deprives them of a Bivens right available to other persons, citizens and noncitizens alike.

Second, the defendants are Government offcials. They are not members of the military or private persons. Two are prison wardens. Three others are high-ranking Depart- ment of Justice offcials. Prison wardens have been defend- ants in Bivens actions, as have other high-level Government offcials. One of the defendants in Carlson was the Director of the Bureau of Prisons; the defendant in Davis was a Mem- ber of Congress. We have also held that the Attorney Gen- eral of the United States is not entitled to absolute immunity in a damages suit arising out of his actions related to national security. See Mitchell v. Forsyth, 472 U. S. 511, 520 (1985).

Third, from a Bivens perspective, the injuries that the plaintiffs claim they suffered are familiar ones. They focus upon the conditions of confnement. The plaintiffs say that they were unnecessarily shackled, confned in small unhy- gienic cells, subjected to continuous lighting (presumably preventing sleep), unnecessarily and frequently strip searched, slammed against walls, injured physically, and sub- ject to verbal abuse. They allege that they suffered these harms because of their race or religion, the defendants hav- ing either turned a blind eye to what was happening or them- selves introduced policies that they knew would lead to these harms even though the defendants knew the plaintiffs had no connections to terrorism.

These claimed harms are similar to, or even worse than, the harms the plaintiffs suffered in Bivens (unreasonable search and seizure in violation of the Fourth Amendment), Davis (unlawful discrimination in violation of the Fifth Amendment), and Carlson (deliberate indifference to medical need in violation of the Eighth Amendment). Indeed, we have said that, “[i]f a federal prisoner in a [Bureau of Pris-

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ons] facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual offcer, subject to the defense of qualifed immunity.” Malesko, supra, at 72; see also Farmer v. Brennan, 511 U. S. 825, 832 (1994) (Bivens case about prisoner abuse). The claims in this suit would seem to fll the Bivens' bill. See Sell v.

United States, 539 U. S. 166, 193 (2003) (Scalia, J., dissenting) (“[A] [Bivens] action . . . is available to federal pretrial de- tainees challenging the conditions of their confnement”).

It is true that the plaintiffs bring their “deliberate indiffer- ence” claim against Warden Hasty under the Fifth Amend- ment's Due Process Clause, not the Eighth Amendment's Cruel and Unusual Punishments Clause, as in Carlson. But that is because the latter applies to convicted criminals while the former applies to pretrial and immigration detainees.

Where the harm is the same, where this Court has held that both the Fifth and Eighth Amendments give rise to Bivens' remedies, and where the only difference in constitutional scope consists of a circumstance (the absence of a conviction) that makes the violation here worse, it cannot be maintained that the difference between the use of the two Amendments is “fundamental.” See City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 244 (1983) (“due process rights” of an unconvicted person “are at least as great as the Eighth Amendment protections available to a convicted prisoner”); Kingsley v. Hendrickson, 576 U. S. 389, 400 (2015) (“pretrial detainees (unlike convicted prisoners) cannot be punished at all”); Zadvydas v. Davis, 533 U. S. 678, 721 (2001) (Kennedy, J., dissenting) (detention “incident to removal . . . cannot be justifed as punishment nor can the confnement or its condi- tions be designed in order to punish”). See also Bistrian v.

Levi, 696 F. 3d 352, 372 (CA3 2012) (permitting Bivens action brought by detainee in administrative segregation); Thomas

v. Ashcroft, 470 F. 3d 491, 493, 496–497 (CA2 2006) (detainee

alleging failure to provide adequate medical care); Magluta

v. Samples, 375 F. 3d 1269, 1271, 1275–1276 (CA11 2004) (de-

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Breyer, J., dissenting tainee in solitary confnement); Papa v. United States, 281

F. 3d 1004, 1010–1011 (CA9 2002) (due process claims arising

from death of immigration detainee); Loe v. Armistead, 582

F. 2d 1291, 1293–1296 (CA4 1978) (detainee's claim of deliber-

ate indifference to medical need). If an arrestee can bring a claim of excessive force (Bivens itself), and a convicted prisoner can bring a claim for denying medical care (Carl- son), someone who has neither been charged nor convicted with a crime should also be able to challenge abuse that causes him to need medical care.

Nor has Congress suggested that it wants to withdraw a damages remedy in circumstances like these. By its ex- press terms, the Prison Litigation Reform Act of 1995 (PLRA) does not apply to immigration detainees. See 42

U. S. C. § 1997e(h) (“[T]he term `prisoner' means any person

incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, vi- olations of criminal law . . . ”); see also Agyeman v. INS, 296

F. 3d 871, 886 (CA9 2002) (“[W]e hold that an alien detained

by the [Immigration and Naturalization Service] pending deportation is not a `prisoner' within the meaning of the PLRA”); LaFontant v. INS, 135 F. 3d 158, 165 (CADC 1998) (same); Ojo v. INS, 106 F. 3d 680, 683 (CA5 1997) (same).

And, in fact, there is strong evidence that Congress assumed that Bivens remedies would be available to prisoners when it enacted the PLRA—e. g., Congress continued to permit prisoners to recover for physical injuries, the typical kinds of Bivens injuries. See 28 U. S. C. § 1346(b)(2); Pfander, Constitutional Torts, at 105–106.

If there were any lingering doubt that the claim against Warden Hasty arises in a familiar Bivens context, the Court has made clear that conditions-of-confnement claims and medical-care claims are subject to the same substantive standard. See Hudson v. McMillian, 503 U. S. 1, 8 (1992) (“[Wilson v. Seiter, 501 U. S. 294, 303 (1991)] extended the deliberate indifference standard applied to Eighth Amend-

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ment claims involving medical care to claims about conditions of confnement”). Indeed, the Court made this very point in a Bivens case alleging that prison wardens were deliberately indifferent to an inmate's safety. See Farmer, supra, at 830, 834.

I recognize that the Court fnds a signifcant difference in the fact that the confnement here arose soon after a national-security emergency, namely, the September 11 at- tacks. The short answer to this argument, in respect to at least some of the claimed harms, is that some plaintiffs con- tinued to suffer those harms up to eight months after the September 11 attacks took place and after the defendants knew the plaintiffs had no connection to terrorism. See App. to Pet. for Cert. in No. 15–1359, p. 280a. But because I believe the Court's argument here is its strongest, I will consider it at greater length below. See Part II–C, infra.

Because the context here is not new, I would allow the plaintiffs' constitutional claims to proceed. The plaintiffs have adequately alleged that the defendants were personally involved in imposing the conditions of confnement and did so with knowledge that the plaintiffs bore no ties to terror- ism, thus satisfying Iqbal's pleading standard. See 556

U. S., at 679 (claims must be “plausible”); see also id., at 699–

700 (Breyer, J., dissenting). And because it is clearly es- tablished that it is unconstitutional to subject detainees to punitive conditions of confnement and to target them based solely on their race, religion, or national origin, the defend- ants are not entitled to qualifed immunity on the constitu- tional claims. See Bell v. Wolfsh, 441 U. S. 520, 535–539, and n. 20 (1979); Davis, 442 U. S., at 236 (“It is equally clear . . . that the Fifth Amendment confers on petitioner a consti- (Simi- tutional right to be free from illegal discrimination”). larly, I would affrm the judgment of the Court of Appeals with respect to the plaintiffs' statutory claim, namely, that the defendants conspired to deprive the plaintiffs of equal protection of the laws in violation of 42 U. S. C. § 1985(3).

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See Turkmen v. Hasty, 789 F. 3d 218, 262–264 (CA2 2015). I agree with the Court of Appeals that the defendants are not entitled to qualifed immunity on this claim. See ibid.)

2

Even were I wrong and were the context here “fundamen- tally different,” Malesko, 534 U. S., at 70, the plaintiffs' claims would nonetheless survive step two and step three of the Court's framework for determining whether Bivens applies, see supra, at 168. Step two consists of asking whether “any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U. S., at 550. I can fnd no such “alternative, existing process” here.

The Court does not claim that the PLRA provides the plaintiffs with a remedy. Ante, at 148–149. Rather, it says that the plaintiffs may have “had available to them” relief in the form of a prospective injunction or an application for a writ of habeas corpus. Ante, at 145. Neither a prospective injunction nor a writ of habeas corpus, however, will nor- mally provide plaintiffs with redress for harms they have already suffered. And here the plaintiffs make a strong claim that neither was available to them—at least not for a considerable time. Some of the plaintiffs allege that for two or three months they were subject to a “communications blackout”; that the prison “staff did not permit them visitors, legal or social telephone calls, or mail”; that their families and attorneys did not know where they were being held; that they could not receive visits from their attorneys; that subse- quently their lawyers could call them only once a week; and that some or all of the defendants “interfered with the de- tainees' effective access to legal counsel.” Offce of Inspec- tor General (OIG) Report, App. 223, 293, 251, 391; see App.

to Pet. for Cert. in No. 15–1359, at 253a, n. 1 (incorporating the OIG report into the complaint). These claims make it

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virtually impossible to say that here there is an “elaborate, comprehensive” alternative remedial scheme similar to schemes that, in the past, we have found block the applica- tion of Bivens to new contexts. Bush, 462 U. S., at 385. If these allegations are proved, then in this suit, it is “damages or nothing.” Bivens, 403 U. S., at 410 (Harlan, J., concurring in judgment).

There being no “alternative, existing process” that pro- vides a “convincing reason” for not applying Bivens, we must proceed to step three. Wilkie, supra, at 550. Doing so, I can fnd no “ `special factors [that] counse[l] hesitation before authorizing' ” this Bivens action. 551 U. S., at 550. I turn to this matter next.

The Court describes two general considerations that it be- lieves argue against an “extension” of Bivens. First, the majority opinion points out that the Court is now far less likely than at the time it decided Bivens to imply a cause of action for damages from a statute that does not explicitly provide for a damages claim. See ante, at 132–133. Sec- ond, it fnds the “silence” of Congress “notable” in that Con- gress, though likely aware of the “high-level policies” in- volved in this suit, did not “choose to extend to any person the kind of remedies” that the plaintiffs here “seek.” Ante, at 144 (internal quotation marks omitted). I doubt the strength of these two general considerations.

The frst consideration, in my view, is not relevant. I con- cede that the majority and concurring opinions in Bivens looked in part for support to the fact that the Court had implied damages remedies from statutes silent on the sub- ject. See 403 U. S., at 397; id., at 402–403 (Harlan, J., con- curring in judgment). But that was not the main argument favoring the Court's conclusion. Rather, the Court drew far stronger support from the need for such a remedy when

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measured against a common-law and constitutional history of allowing traditional legal remedies where necessary. Id., at 392, 396–397. The Court believed such a remedy was necessary to make effective the Constitution's protection of certain basic individual rights. See id., at 392; id., at 407 (opinion of Harlan, J.). Similarly, as the Court later ex- plained, a damages remedy against federal offcials pre- vented the serious legal anomaly I previously mentioned.

Its existence made basic constitutional protections of the individual against Federal Government abuse (the Bill of Rights' pre-Civil War objective) as effective as protections against abuse by state offcials (the post-Civil War, post- selective-incorporation objective). See supra, at 166.

Nor is the second circumstance—congressional silence— relevant in the manner that the majority opinion describes.

The Court initially saw that silence as indicating an absence of congressional hostility to the Court's exercise of its tradi- tional remedy-inferring powers. See Bivens, supra, at 397; Davis, 442 U. S., at 246–247. Congress' subsequent silence contains strong signs that it accepted Bivens actions as part of the law. After all, Congress rejected a proposal that would have eliminated Bivens by substituting the U. S. Gov- ernment as a defendant in suits against federal offcers that raised constitutional claims. See Pfander, Constitutional Torts, at 102. Later, Congress expressly immunized federal employees acting in the course of their offcial duties from tort claims except those premised on violations of the Consti- tution. See Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, 28 U. S. C. § 2679(b)(2)(A). We stated that it is conse- quently “crystal clear that Congress views [the Federal Tort Claims Act] and Bivens as [providing] parallel, comple- mentary causes of action.” Carlson, 446 U. S., at 20; see Malesko, 534 U. S., at 68 (similar). Congress has even as- sumed the existence of a Bivens remedy in suits brought by noncitizen detainees suspected of terrorism. See 42 U. S. C.

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§ 2000dd–1 (granting qualifed immunity—but not absolute immunity—to military and civilian federal offcials who are sued by alien detainees suspected of terrorism).

The majority opinion also sets forth a more specifc list of factors that it says bear on “whether a case presents a new Bivens context.” Ante, at 139. In the Court's view, a “case might differ” from Bivens “in a meaningful way because of [1] the rank of the offcers involved; [2] the constitutional right at issue; [3] the generality or specifcity of the offcial action; [4] the extent of judicial guidance as to how an offcer should respond to the problem or emergency to be con- fronted; [5] the statutory or other legal mandate under which the offcer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; [7] or the presence of potential special factors that previous Bivens cases did not consider.” Ante, at 139–140. In my view, these factors do not make a “meaningful difference” at step one of the Bivens framework. Some of them are better cast as “special factors” relevant to step three. But, as I see it, none should normally foreclose a Bivens action and none is

(1) The rank of the offcers. I can understand why an off-

cer's rank might bear on whether he violated the Constitu- tion, because, for example, a plaintiff might need to show the offcer was willfully blind to a harm caused by lower ranking offcers or that the offcer had actual knowledge of the mis- conduct. And I can understand that rank might relate to the existence of a legal defense, such as qualifed, or even absolute, immunity. But if—and I recognize that this is often a very big if—a plaintiff proves a clear constitutional violation, say, of the Fourth Amendment, and he shows that the defendant does not possess any form of immunity or other defense, then why should he not have a damages rem- edy for harm suffered? What does rank have to do with

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that question, namely, the Bivens question? Why should the law treat differently a high-level offcial and the local constable where each has similarly violated the Constitution and where neither can successfully assert immunity or any other defense?

(2) The constitutional right at issue. I agree that this

factor can make a difference, but only when the substance of the right is distinct. See, e. g., Wilkie, 551 U. S. 537 (land rights). But, for reasons I have already pointed out, there is no relevant difference between the rights at issue here and the rights at issue in our previous Bivens cases, namely, the rights to be free of unreasonable searches, invidious discrimi- nation, and physical abuse in federal custody. See supra, at 169–170.

(3) The generality or specifcity of the individual action.

I should think that it is not the “generality or specifcity” of an offcial action but rather the nature of the offcial action that matters. Bivens should apply to some generally appli- cable actions, such as actions taken deliberately to jail a large group of known-innocent people. And it should not apply to some highly specifc actions, depending upon the nature of those actions.

(4) The extent of judicial guidance. This factor may be

relevant to the existence of a constitutional violation or a qualifed-immunity defense. Where judicial guidance is lacking, it is more likely that a constitutional violation is not clearly established. See Anderson v. Creighton, 483 U. S.

635, 640 (1987) (Offcials are protected by qualifed immunity unless “[t]he contours of the right [are] suffciently clear that a reasonable offcial would understand that what he is doing violates that right”). But I do not see how, assuming the violation is clear, the presence or absence of “judicial guid- ance” is relevant to the existence of a damages remedy.

(5) The statutory (or other) legal mandate under which

the offcer was operating. This factor too may prove rele- vant to the question whether a constitutional violation exists

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or is clearly established. But, again, assuming that it is, I do not understand why this factor is relevant to the existence of a damages remedy. See Stanley, 483 U. S., at 684 (the question of immunity is “analytically distinct” from the ques- tion whether a Bivens action should lie).

(6) Risk of disruptive judicial intrusion. All damages

actions risk disrupting to some degree future decisionmaking by members of the Executive or Legislative Branches.

Where this Court has authorized Bivens actions, it has found that disruption tolerable, and it has explained why disruption is, from a constitutional perspective, desirable. See Davis, 442 U. S., at 242 (Unless constitutional rights “are to become merely precatory, . . . litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to en- force these rights, must be able to invoke the existing juris- diction of the courts for . . . protection”); Malesko, 534 U. S., at 70 (“The purpose of Bivens is to deter individual federal offcers from committing constitutional violations”). Insofar as the Court means this consideration to provide a reason why there should be no Bivens action where a Government employee acts in time of security need, I shall discuss the matter next, in Part C.

(7) Other potential special factors. Since I am not cer-

tain what these other “potential factors” are and, since the Court does not specify their nature, I would not, and the Court cannot, consider them in differentiating this suit from our previous Bivens cases or as militating against recogniz- ing a Bivens action here.

In my view, the Court's strongest argument is that Bivens should not apply to policy-related actions taken in times of national-security need, for example, during war or national- security emergency. As the Court correctly points out, the Constitution grants primary power to protect the Nation's security to the Executive and Legislative Branches, not to

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the Judiciary. But the Constitution also delegates to the Ju- diciary the duty to protect an individual's fundamental con- stitutional rights. Hence when protection of those rights and a determination of security needs confict, the Court has a role to play. The Court most recently made this clear in cases arising out of the detention of enemy combatants at Guantanamo Bay. Justice O'Connor wrote that “a state of war is not a blank check.” Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). In Boumediene, 553

U. S., at 732–733, the Court reinforced that point, holding

that noncitizens detained as enemy combatants were entitled to challenge their detention through a writ of habeas corpus, notwithstanding the national-security concerns at stake.

We have not, however, answered the specifc question the Court places at issue here: Should Bivens actions continue to exist in respect to policy-related actions taken in time of war or national emergency? In my view, they should.

For one thing, a Bivens action comes accompanied by many legal safeguards designed to prevent the courts from interfering with Executive and Legislative Branch activity reasonably believed to be necessary to protect national secu- rity. In Justice Jackson's well-known words, the Constitu- tion is not “a suicide pact.” Terminiello v. Chicago, 337

U. S. 1, 37 (1949) (dissenting opinion). The Constitution it-

self takes account of public necessity. Thus, for example, the Fourth Amendment does not forbid all Government searches and seizures; it forbids only those that are “unrea- sonable.” Ordinarily, it requires that a police offcer obtain a search warrant before entering an apartment, but should the offcer observe a woman being dragged against her will into that apartment, he should, and will, act at once. The Fourth Amendment makes allowances for such “exigent cir- cumstances.” Brigham City v. Stuart, 547 U. S. 398, 401– 402 (2006) (warrantless entry justifed to forestall imminent injury). Similarly, the Fifth Amendment bars only condi- tions of confnement that are not “reasonably related to a

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U. S., at 539. What is unreasonable and illegitimate in time

of peace may be reasonable and legitimate in time of war.

Moreover, Bivens comes accompanied with a qualifed- immunity defense. Federal offcials will face suit only if they have violated a constitutional right that was “clearly established” at the time they acted. Harlow, 457 U. S., at 818.

Further, in order to prevent the very presence of a Bivens lawsuit from interfering with the work of a Government offcial, this Court has held that a complaint must state a claim for relief that is “plausible.” Iqbal, 556 U. S., at 679. “[C]onclusory” statements and “[t]hreadbare” allegations will not suffce. Id., at 678. And the Court has protected high-level offcials in particular by requiring that plaintiffs plead that an offcial was personally involved in the unconsti- tutional conduct; an offcial cannot be vicariously liable for another's misdeeds. Id., at 676.

Finally, where such a claim is fled, courts can, and should, tailor discovery orders so that they do not unnecessarily or improperly interfere with the offcial's work. The Sec- ond Circuit has emphasized the “need to vindicate the pur- pose of the qualifed immunity defense by dismissing non- meritorious claims against public offcials at an early stage of litigation.” Iqbal v. Hasty, 490 F. 3d 143, 158 (2007).

Where some of the defendants are “current or former senior offcials of the Government, against whom broad-ranging al- legations of knowledge and personal involvement are easily made, a district court” not only “may, but `must exercise its discretion in a way that protects the substance of the quali- fed immunity defense . . . so that' ” those offcials “ `are not subjected to unnecessary and burdensome discovery or trial proceedings.' ” Id., at 158–159. The court can make “all such discovery subject to prior court approval.” Id., at 158.

It can “structure . . . limited discovery by examining written responses to interrogatories and requests to admit before au-

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thorizing depositions, and by deferring discovery directed to high-level offcials until discovery of front-line offcials has been completed and has demonstrated the need for discovery higher up the ranks.” Ibid. In a word, a trial court can and should so structure the proceedings with full recognition that qualifed immunity amounts to immunity from suit as well as immunity from liability.

Given these safeguards against undue interference by the Judiciary in times of war or national-security emergency, the Court's abolition, or limitation of, Bivens actions goes too far. If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fre to the house.

At the same time, there may well be a particular need for Bivens remedies when security-related Government actions are at issue. History tells us of far too many instances where the Executive or Legislative Branch took actions dur- ing time of war that, on later examination, turned out unnec- essarily and unreasonably to have deprived American citi- zens of basic constitutional rights. We have read about the Alien and Sedition Acts, the thousands of civilians impris- oned during the Civil War, and the suppression of civil liber- ties during World War I. See W. Rehnquist, All the Laws but One: Civil Liberties in Wartime 209–210, 49–50, 173–180, 183 (1998); see also Ex parte Milligan, 4 Wall. 2 (1866) (de- cided after the Civil War was over). The pages of the U. S.

Reports themselves recite this Court's refusal to set aside the Government's World War II action removing more than 70,000 American citizens of Japanese origin from their west coast homes and interning them in camps, see Korematsu v.

United States, 323 U. S. 214 (1944)—an action that at least some offcials knew at the time was unnecessary, see id., at 233–242 (Murphy, J., dissenting); P. Irons, Justice at War 202–204, 288 (1983). President Franklin Roosevelt's Attor- ney General, perhaps exaggerating, once said that “ `[t]he Constitution has not greatly bothered any wartime Presi- dent.' ” Rehnquist, supra, at 191.

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Can we, in respect to actions taken during those periods, rely exclusively, as the Court seems to suggest, upon injunc- tive remedies or writs of habeas corpus, their retail equiva- lent? Complaints seeking that kind of relief typically come during the emergency itself, when emotions are strong, when courts may have too little or inaccurate information, and when courts may well prove particularly reluctant to inter- fere with even the least well-founded Executive Branch ac- tivity. That reluctance may itself set an unfortunate prece- dent, which, as Justice Jackson pointed out, can “li[e] about like a loaded weapon” awaiting discharge in another case.

Korematsu, supra, at 246 (dissenting opinion).

A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available. In such circum- stances, courts have more time to exercise such judicial vir- tues as calm refection and dispassionate application of the law to the facts. We have applied the Constitution to ac- tions taken during periods of war and national-security emergency. See Boumediene, 553 U. S., at 732–733; Hamdi

v. Rumsfeld, 542 U. S. 507; cf. Youngstown Sheet & Tube Co.

v. Sawyer, 343 U. S. 579 (1952). I should think that the wis-

dom of permitting courts to consider Bivens actions, later granting monetary compensation to those wronged at the time, would follow a fortiori.

As is well known, Lord Atkins, a British judge, wrote in the midst of World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” Liversidge v. An- derson, [1942] A. C. 206 (H. L. 1941) 244. The Court, in my view, should say the same of this Bivens action.

With respect, I dissent.

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Syllabus

DEPARTMENT OF CORRECTIONS, et al.

certiorari to the united states court of appeals for the eleventh circuit

No. 16–5294. Argued April 24, 2017—Decided June 19, 2017

Ake v. Oklahoma, 470 U. S. 68, 83, clearly established that when an indi- gent “defendant demonstrates . . . that his sanity at the time of the offense is to be a signifcant fact at trial, the State must” provide the defendant with “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”

One month after Ake was decided, Alabama charged petitioner Mc- Williams with rape and murder. Finding him indigent, the trial court appointed counsel, who requested a psychiatric evaluation of McWil- liams. The court granted the motion and the State convened a commis- sion, which concluded that McWilliams was competent to stand trial and had not been suffering from mental illness at the time of the alleged offense. A jury convicted McWilliams of capital murder and recom- mended a death sentence. Later, while the parties awaited McWil- liams' judicial sentencing hearing, McWilliams' counsel asked for neuro- logical and neuropsychological testing of McWilliams. The court agreed and McWilliams was examined by Dr. Goff. Dr. Goff fled a report two days before the judicial sentencing hearing. He concluded that McWilliams was likely exaggerating his symptoms, but nonetheless appeared to have some genuine neuropsychological problems. Just be- fore the hearing, counsel also received updated records from the com- mission's evaluation and previously subpoenaed mental health records from the Alabama Department of Corrections. At the hearing, defense counsel requested a continuance in order to evaluate all the new mate- rial, and asked for the assistance of someone with expertise in psycho- logical matters to review the fndings. The trial court denied defense counsel's requests. At the conclusion of the hearing, the court sen- tenced McWilliams to death.

On appeal, McWilliams argued that the trial court denied him the right to meaningful expert assistance guarantee by Ake. The Alabama Court of Criminal Appeals affrmed McWilliams' conviction and sen- tence, holding that Dr. Goff's examination satisfed Ake's requirements.

The State Supreme Court affrmed, and McWilliams failed to obtain state postconviction relief. On federal habeas review, a Magistrate

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Judge also found that the Goff examination satisfed Ake and, therefore, that the State Court of Criminal Appeals' decision was not contrary to, or an unreasonable application of, clearly established federal law. See

28 U. S. C. § 2254(d)(1). Adopting the Magistrate Judge's report and

recommendation, the District Court denied relief. The Eleventh Cir- cuit affrmed.

1. Ake clearly established that when certain threshold criteria are

met, the state must provide a defendant with access to a mental health expert who is suffciently available to the defense and independent from the prosecution to effectively “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U. S., at 83. The Alabama courts' determination that McWilliams received all the assistance to which Ake entitled him was contrary to, or an unreasonable application of, clearly established federal law.

Pp. 195–199.

(a) Three preliminary issues require resolution. First, the condi- tions that trigger Ake's application are present. McWilliams is and was an “indigent defendant,” 470 U. S., at 70, and his “mental condition” was both “relevant to . . . the punishment he might suffer,” id., at 80, and “seriously in question,” id., at 70. Second, this Court rejects Alabama's claim that the State was relieved of its Ake obligations because McWilli- ams received brief assistance from a volunteer psychologist at the Uni- versity of Alabama. Even if the episodic help of an outside volunteer could satisfy Ake, the State does not refer to any specifc record facts that indicate that the volunteer psychologist was available to the defense at the judicial sentencing proceeding. Third, contrary to Alabama's sug- gestion, the record indicates that McWilliams did not get all the mental health assistance that he requested. Rather, he asked for additional help at the judicial sentencing hearing, but was rebuffed. Pp. 195–196.

(b) This Court does not have to decide whether Ake requires a State to provide an indigent defendant with a qualifed mental health expert retained specifcally for the defense team. That is because Ala- bama did not meet even Ake's most basic requirements in this case.

Ake requires more than just an examination. It requires that the State provide the defense with “access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.” 470 U. S., at 83.

Even assuming that Alabama met the examination requirement, it did not meet any of the other three. No expert helped the defense evaluate the Goff report or McWilliams' extensive medical records and translate these data into a legal strategy. No expert helped the defense prepare

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and present arguments that might, e. g., have explained that McWil- liams' purported malingering was not necessarily inconsistent with mental illness. No expert helped the defense prepare direct or cross- examination of any witnesses, or testifed at the judicial sentencing hearing. Since Alabama's provision of mental health assistance fell so dramatically short of Ake's requirements, the Alabama courts' decision affrming McWilliams' sentence was “contrary to, or involved an unrea- sonable application of, clearly established Federal law.” 28 U. S. C. § 2254(d)(1). Pp. 196–199.

2. The Eleventh Circuit should determine on remand whether the Al-

abama courts' error had the “substantial and injurious effect or infu- ence” required to warrant a grant of habeas relief, Davis v. Ayala, 576

U. S. 257, 268, specifcally considering whether access to the type of

meaningful assistance in evaluating, preparing, and presenting the de- fense that Ake requires could have made a difference. P. 200.

634 Fed. Appx. 698, reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., fled a dissent- ing opinion, in which Roberts, C. J., and Thomas and Gorsuch, JJ., joined, post, p. 200.

Stephen B. Br ight, by appointment of the Court, 580

U. S. 1170, argued the cause for petitioner. With him on the

briefs were Mark Loudon-Brown, Patrick Mulvaney, Don- ald B. Verrilli, Jr., and Michael B. DeSanctis.

Andrew L. Brasher, Solicitor General of Alabama, argued the cause for respondents. With him on the brief were Ste- ven T. Marshall, Attorney General, and Henry M. Johnson and Megan A. Kirkpatrick, Assistant Attorneys General.*

Justice Breyer delivered the opinion of the Court.

Thirty-one years ago, petitioner James Edmond McWil- liams, Jr., was convicted of capital murder by an Alabama

*Aaron M. Panner, David W. Ogden, Daniel S. Volchok, Deanne M.

Ottaviano, and Nathalie F. P. Gilfoyle fled a brief for the American Psy- chiatric Association et al. as amici curiae urging reversal.

George H. Kendall, Jenay Nurse, Corrine A. Irish, David Oscar Mar- kus, and Janet Moore fled a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae.

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jury and sentenced to death. McWilliams challenged his sentence on appeal, arguing that the State had failed to pro- vide him with the expert mental health assistance the Con- stitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts' refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.”

28 U. S. C. § 2254(d)(1). We hold that it was. Our decision

in Ake v. Oklahoma, 470 U. S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is suffciently available to the defense and inde- pendent from the prosecution to effectively “assist in evalua- tion, preparation, and presentation of the defense.” Id., at 83. Petitioner in this case did not receive that assistance.

McWilliams and the State of Alabama agree that Ake (which this Court decided in February 1985) sets forth the applicable constitutional standards. Before turning to the circumstances of McWilliams' case, we describe what the Court held in Ake. We put in italics language that we fnd particularly pertinent here.

The Court began by stating that the “issue in this case is whether the Constitution requires that an indigent defend- ant have access to the psychiatric examination and assist- ance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question.” Id., at 70 (emphasis added). The Court said it would consider that issue within the framework of earlier cases granting “an indigent defendant . . . a fair opportunity to present his defense” and “to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Id., at 76. “Meaningful access to justice,” the Court added, “has been the consistent theme of these cases.” Id., at 77.

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The Court then wrote that “when the State has made the defendant's mental condition relevant to his criminal culpa- bility and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense.” Id., at 80. A psychiatrist may, among other things, “gather facts,” “analyze the information gathered and from it draw plausible conclusions,” and “know the probative questions to ask of the opposing party's psychi- atrists and how to interpret their answers.” Ibid. These and related considerations

“lea[d] inexorably to the conclusion that, without the as- sistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross- examination of a State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination.” Id., at 82 (emphasis added).

The Court concluded: “We therefore hold that when a de- fendant demonstrates to the trial judge that his sanity at the time of the offense is to be a signifcant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and pres- entation of the defense. . . . Our concern is that the indigent defendant have access to a competent psychiatrist for the[se] purpose[s].” Id., at 83 (emphasis added).

Ake thus clearly establishes that when its threshold crite- ria are met, a State must provide a mental health profes- sional capable of performing a certain role: “conduct[ing] an appropriate examination and assist[ing] in evaluation, prepa- ration, and presentation of the defense.” Ibid. Unless a defendant is “assure[d]” the assistance of someone who can

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effectively perform these functions, he has not received the “minimum” to which Ake entitles him. Ibid.

One month after this Court decided Ake, the State of Ala- bama charged McWilliams with rape and murder. The trial court found McWilliams indigent and provided him with counsel. It also granted counsel's pretrial motion for a psy- chiatric evaluation of McWilliams' sanity, including aspects of his mental condition relevant to “mitigating circumstances to be considered in a capital case in the sentencing stage.” Rec. 1526 (certifed trial record) (hereinafter “T.” refers to the certifed trial record; “P. C. T.” refers to the certifed court reporter's state postconviction proceedings transcript).

The court ordered the State to convene a “Lunacy Commis- sion,” which would examine McWilliams and fle a report with the court. See id., at 1528–1529.

Subsequently a three-member Lunacy Commission exam- ined McWilliams at a state hospital, the Taylor Hardin Se- cure Medical Facility. The three members, all psychiatrists, concluded that McWilliams was competent to stand trial and that he had not been suffering from mental illness at the time of the alleged offense. Id., at 1544–1546. One of them, Dr. Kamal Nagi, wrote that “Mr. McWilliams is grossly exag- gerating his psychological symptoms to mimic mental ill- ness.” Id., at 1546. Dr. Nagi noted that McWilliams' per- formance on one of the tests “suggested that [McWilliams] had exaggerated his endorsement of symptoms of illness and the profle was considered a `fake bad.' ” Ibid.

McWilliams' trial took place in late August 1986. On Au- gust 26 the jury convicted him of capital murder. The prosecution sought the death penalty, which under then- applicable Alabama law required both a jury recommenda- tion (with at least 10 affrmative votes) and a later determi- nation by the judge. See Ala. Code § 13A–5–46(f) (1986).

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place the next day. The prosecution reintroduced evidence from the guilt phase and called a police offcer to testify that McWilliams had a prior conviction. T. 1297, 1299–1303.

The defense called McWilliams and his mother. Both testi- fed that McWilliams, when a child, had suffered multiple serious head injuries. Id., at 1303–1318, 1320–1335. Mc- Williams also described his history of psychiatric and psy- chological evaluations, reading from the prearrest report of one psychologist, who concluded that McWilliams had a “bla- tantly psychotic thought disorder” and needed inpatient treatment. Id., at 1329–1332.

When the prosecutor, cross-examining McWilliams, asked about the neurological effects of his head injuries, McWil- liams replied, “I am not a psychiatrist.” Id., at 1328. Simi- larly, when the prosecutor asked McWilliams' mother whether her son was “crazy,” she answered, “I am no expert: I don't know whether my son is crazy or not. All I know, that my son do need help.” Id., at 1317.

The prosecution then called two of the mental health pro- fessionals who had signed the Lunacy Commission's report, Dr. Kamal Nagi and Dr. Norman Poythress. Dr. Nagi testi- fed that he had found no evidence of psychosis, but did not appear to be aware of McWilliams' history of head trauma.

See id., at 1351–1352. Dr. Poythress testifed that one of the tests that McWilliams took was “clinically invalid” because the test's “validity scales” indicated that McWilliams had ex- aggerated or faked his symptoms. Id., at 1361–1363.

Although McWilliams' counsel had subpoenaed further mental health records from Holman State Prison, where Mc- Williams was being held, the jury did not have the opportu- nity to consider them, for, though subpoenaed on August 13, the records had not arrived by August 27, the day of the jury hearing.

After the hearing, the jury recommended the death pen- alty by a vote of 10 to 2, the minimum required by Alabama law. The court scheduled its judicial sentencing hearing for October 9, about six weeks later.

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Five weeks before that hearing, the trial court ordered the Alabama Department of Corrections to respond to McWil- liams' subpoena for mental health records. Id., at 1619.

The court also granted McWilliams' motion for neurological and neuropsychological exams. Id., at 1615–1617. That motion (apparently fled at the suggestion of a University of Alabama psychologist who had “volunteer[ed]” to help coun- sel “in her spare time,” P. C. T. 251–252) asked the court to “issue an order requiring the State of Alabama to do com- plete neurological and neuropsychological testing on the De- fendant in order to have the test results available for his sentencing hearing.” T. 1615.

Consequently, Dr. John Goff, a neuropsychologist em- ployed by the State's Department of Mental Health, exam- ined McWilliams. On October 7, two days before the judi- cial sentencing hearing, Dr. Goff fled his report. The report concluded that McWilliams presented “some diagnostic di- lemmas.” Id., at 1635. On the one hand, he was “obviously attempting to appear emotionally disturbed” and “exagger- ating his neuropsychological problems.” Ibid. But on the other hand, it was “quite apparent that he ha[d] some genu- ine neuropsychological problems.” Ibid. Tests revealed “cortical dysfunction attributable to right cerebral hemi- sphere dysfunction,” shown by “left hand weakness, poor motor coordination of the left hand, sensory defcits including suppressions of the left hand and very poor visual search skills.” Id., at 1636. These defciencies were “suggestive of a right hemisphere lesion” and “compatible with the injuries [McWilliams] sa[id] he sustained as a child.” Id., at 1635.

The report added that McWilliams' “obvious neuropsycholog- ical defcit” could be related to his “low frustration tolerance and impulsivity,” and suggested a diagnosis of “organic per- sonality syndrome.” Ibid.

The day before the sentencing hearing defense counsel also received updated records from Taylor Hardin hospital,

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and on the morning of the hearing he received the records (subpoenaed in mid-August) from Holman Prison. The prison records indicated that McWilliams was taking an assortment of psychotropic medications including Desyrel, Librium, and an antipsychotic, Mellaril. See App. 190a– 193a.

The judicial sentencing hearing began on the morning of October 9. Defense counsel told the trial court that the eleventh-hour arrival of the Goff report and the mental health records left him “unable to present any evidence today.” Id., at 194a. He said he needed more time to go over the new information. Furthermore, since he was “not a psychologist or a psychiatrist,” he needed “to have some- one else review these fndings” and offer “a second opinion as to the severity of the organic problems discovered.” Id., at 192a–196a.

The trial judge responded, “All right. Well, let's pro- ceed.” Id., at 197a. The prosecution then presented its case. Once it had fnished, defense counsel moved for a con- tinuance in order “to allow us to go through the material that has been provided to us in the last 2 days.” Id., at 204a. The judge offered to give defense counsel until 2 p.m. that afternoon. He also stated that “[a]t that time, The Court will entertain any motion that you may have with some other person to review” the new material. Id., at 205a. Defense counsel protested that “there is no way that I can go through this material,” but the judge immediately added, “Well, I will give you the opportunity. . . . If you do not want to try, then you may not.” Id., at 206a. The court then adjourned until 2 p.m.

During the recess, defense counsel moved to withdraw.

He said that “the abritrary [sic] position taken by this Court regarding the Defendant's right to present mitigating cir- cumstances is unconscionable resulting in this proceeding being a mockery.” T. 1644. He added that “further partici-

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pation would be tantamount to exceptance [sic] of the Court's ruling.” Ibid. The trial court denied the motion to withdraw.

When the proceedings resumed, defense counsel renewed

“It is the position of the Defense that we have received these records at such a late date, such a late time that it has put us in a position as laymen, with regard to psychological matters, that we cannot adequately make a determination as what to present to The Court with regards to the particular defciencies that the Defendant has. We believe that he has the type of diagnosed ill- ness that we pointed out earlier for The Court and have mentioned for The Court. But we cannot determine ourselves from the records that we have received and the lack of receiving the test and the lack of our own expertise, whether or not such a condition exists; whether the reports and tests that have been run by Taylor Hardin, and the Lunacy Commission, and at Hol- man are tests that should be challenged in some type of way or the results should be challenged, we really need an opportunity to have the right type of experts in this feld, take a look at all of those records and tell us what is happening with him. And that is why we renew the Motion for a Continuance.” App. 207a.

The trial court denied the motion.

The prosecutor then offered his closing statement, in which he argued that there were “no mitigating circum- stances.” Id., at 209a. Defense counsel replied that he “would be pleased to respond to [the prosecutor's] remarks that there are no mitigating circumstances in this case if I were able to have time to produce . . . any mitigating circum- stances.” Id., at 210a. But, he said, since neither he nor his co-counsel were “doctors,” neither was “really capable of going through those records on our own.” Ibid. The court had thus “foreclosed by structuring this hearing as it has,

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the Defendant from presenting any evidence of mitigation in psychological—psychiatric terms.” Id., at 211a.

The trial judge then said that he had reviewed the records himself and found evidence that McWilliams was faking and manipulative. Ibid. Defense counsel attempted to contest

“MR. SOGOL: I told Your Honor that my looking at those records was not of any value to me; that I needed to have somebody look at those records who understood them, who could interpret them for me. Did I not tell Your Honor that?

“THE COURT: As I said, on the record earlier, Mr. Sogol, and I don't want to argue or belabor this, but I would have given you the opportunity to make a mo- tion to present someone to evaluate that.

“MR. SOGOL: Your Honor gave me no time in which to do that. Your Honor told me to be here at 2 o'clock this afternoon. Would Your Honor have wanted me to file a Motion for Extraordinary Expenses to get someone?

“THE COURT: I want you to approach with your cli- ent, please.” Id., at 211a–212a.

The court then sentenced McWilliams to death.

The court later issued a written sentencing order. It found three aggravating circumstances and no mitigating cir- cumstances. It found that McWilliams “was not and is not psychotic,” and that “the preponderance of the evidence from these tests and reports show [McWilliams] to be feigning, faking, and manipulative.” Id., at 188a. The court wrote that even if McWilliams' mental health issues “did rise to the level of a mitigating circumstance, the aggravating circum- stances would far outweigh this as a mitigating circum- stance.” Ibid.

McWilliams appealed, arguing that the trial court had denied him the right to meaningful expert assistance guar-

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anteed by Ake. The Alabama Court of Criminal Appeals rejected his argument. It wrote that Ake's requirements “are met when the State provides the [defendant] with a competent psychiatrist.” McWilliams v. State, 640 So. 2d 982, 991 (1991). And Alabama, by “allowing Dr. Goff to ex- amine” McWilliams, had satisfed those requirements. Ibid.

The court added that “[t]here is no indication in the record that [McWilliams] could not have called Dr. Goff as a witness to explain his fndings or that he even tried to contact the psychiatrist to discuss his fndings,” ibid.; that “the trial court indicated that it would have considered a motion to present an expert to evaluate this report” had one been made, ibid.; and that there was “no prejudice by the trial court's denial of [McWilliams'] motion for continuance,” id., at 993. The appeals court therefore affrmed McWilliams' conviction and sentence. The Alabama Supreme Court, in turn, affrmed the appeals court (without addressing the Ake issue). Ex parte McWilliams, 640 So. 2d 1015 (1993).

After McWilliams failed to obtain postconviction relief from the state courts, he sought a federal writ of habeas corpus.

See 28 U. S. C. § 2254.

In federal habeas court McWilliams argued before a Mag- istrate Judge that he had not received the expert assistance that Ake required. The Magistrate Judge recommended against issuing the writ. He wrote that McWilliams had “received the assistance required by Ake” because Dr. Goff “completed the testing” that McWilliams requested. App.

88a. Hence, the decision of the Alabama Court of Criminal Appeals was not contrary to, or an unreasonable applica- tion of, clearly established federal law. See 28 U. S. C. § 2254(d)(1). The District Court adopted the Magistrate Judge's report and recommendation and denied relief. A di- vided panel of the Court of Appeals for the Eleventh Circuit affrmed. See McWilliams v. Commissioner, Ala. Dept. of Corrections, 634 Fed. Appx. 698 (2015) (per curiam); id., at

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McWilliams fled a petition for certiorari. We granted the petition.

The question before us is whether the Alabama Court of Criminal Appeals' determination that McWilliams got all the assistance to which Ake entitled him was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. § 2254(d)(1). Before turning to the heart of that question, we resolve three preliminary issues.

First, no one denies that the conditions that trigger appli- cation of Ake are present. McWilliams is and was an “indi- gent defendant,” 470 U. S., at 70. See supra, at 188. His “mental condition” was “relevant to . . . the punishment he might suffer,” 470 U. S., at 80. See supra, at 189. And, that “mental condition,” i. e., his “sanity at the time of the offense,” was “seriously in question,” 470 U. S., at 70. See supra, at 189. Consequently, the Constitution, as inter- preted in Ake, required the State to provide McWilliams with “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, prepara- tion, and presentation of the defense.” 470 U. S., at 83.

Second, we reject Alabama's claim that the State was ex- empted from its obligations because McWilliams already had the assistance of Dr. Rosenszweig, the psychologist at the University of Alabama who “volunteer[ed]” to help defense counsel “in her spare time” and suggested the defense ask for further testing, P. C. T. 251–252. Even if the episodic assistance of an outside volunteer could relieve the State of its constitutional duty to ensure an indigent defendant access to meaningful expert assistance, no lower court has held or suggested that Dr. Rosenszweig was available to help, or might have helped, McWilliams at the judicial sentencing proceeding, the proceeding here at issue. Alabama does not

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refer to any specifc record facts that indicate that she was available to the defense at this time.

Third, Alabama argues that Ake's requirements are irrele- vant because McWilliams “never asked for more expert as- sistance” than he got, “even though the trial court gave him the opportunity to do so.” Brief for Respondents 50–51.

The record does not support this contention. When defense counsel requested a continuance at the sentencing hearing, he repeatedly told the court that he needed “to have some- one else review” the Goff report and medical records. App.

193a. See, e. g., id., at 196a (“[I]t is just incumbent upon me to have a second opinion as to the severity of the organic problems discovered”); id., at 207a (“[W]e really need an op- portunity to have the right type of experts in this feld, take a look at all of these records and tell us what is happening with him”); id., at 211a (“I told Your Honor that my looking at these records was not of any value to me; that I needed to have somebody look at those records who understood them, who could interpret them for me”). Counsel also ex- plicitly asked the trial court what else he was supposed to ask for to obtain an expert: “Would Your Honor have wanted me to fle a Motion for Extraordinary Expenses to get some- one?” Id., at 212a. We have reproduced a lengthier ac- count of the exchanges, supra, at 191–193. They make clear that counsel wanted additional expert assistance to review the report and records—that was the point of asking for a continuance. In response, the court told counsel to approach the bench and sentenced McWilliams to death. Thus the record, in our view, indicates that McWilliams did request additional help from mental health experts.

We turn to the main question before us: whether the Ala- bama Court of Criminal Appeals' determination that McWil- liams got all the assistance that Ake requires was “contrary to, or involved an unreasonable application of, clearly estab- lished Federal law.” 28 U. S. C. § 2254(d)(1).

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McWilliams would have us answer “yes” on the ground that Ake clearly established that a State must provide an indigent defendant with a qualifed mental health expert re- tained specifcally for the defense team, not a neutral expert available to both parties. He points to language in Ake that seems to foresee that consequence. See, e. g., 470 U. S., at 81 (“By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investi- gative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate deter- mination of the truth on the issue before them” (emphasis added)).

We need not, and do not, decide, however, whether this particular McWilliams claim is correct. As discussed above, Ake clearly established that a defendant must receive the assistance of a mental health expert who is suffciently avail- able to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presenta- tion of the defense.” Id., at 83. As a practical matter, the simplest way for a State to meet this standard may be to provide a qualifed expert retained specifcally for the de- fense team. This appears to be the approach that the over- whelming majority of jurisdictions have adopted. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 8–35 (describing practice in capital-active jurisdictions); Tr. of Oral Arg. 40 (respondents conceding that “this issue really has been mooted over the last 30- some-odd years because of statutory changes”). It is not necessary, however, for us to decide whether the Constitu- tion requires States to satisfy Ake's demands in this way.

That is because Alabama here did not meet even Ake's most basic requirements.

The dissent calls our unwillingness to resolve the broader question whether Ake clearly established a right to an ex- pert independent from the prosecution a “most unseemly maneuver.” Post, at 201 (opinion of Alito, J.). We do not

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agree. We recognize that we granted petitioner's frst ques- tion presented—which addressed whether Ake clearly estab- lished a right to an independent expert—and not his second, which raised more case-specific concerns. See Pet. for Cert. i. Yet that does not bind us to issue a sweeping ruling when a narrow one will do. As we explain below, our deter- mination that Ake clearly established that a defendant must receive the assistance of a mental health expert who is suff- ciently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense,” 470 U. S., at 83, is suffcient to resolve the case. We therefore need not decide whether (Nor do we agree with the Ake clearly established more. dissent that our approach is “acutely unfair to Alabama” by not “giv[ing] the State a fair chance to respond.” Post, at 211. In fact, the State devoted an entire section of its merits brief to explaining why it thought that “[n]o matter how the Court resolves the [independent expert] question, the court of appeals correctly denied the habeas petition.” Brief for Respondents 50. See also id., at 14, 52 (referring to the lower courts' case-specifc determinations that McWil- liams got all the assistance Ake requires).)

The Alabama appeals court held that “the requirements of Ake v. Oklahoma . . . are met when the State provides the [defendant] with a competent psychiatrist. The State met this requirement in allowing Dr. Goff to examine [McWil- liams].” McWilliams, 640 So. 2d, at 991. This was plainly incorrect. Ake does not require just an examination.

Rather, it requires the State to provide the defense with “access to a competent psychiatrist who will conduct an ap- propriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.” Ake, supra, at 83 (emphasis added).

We are willing to assume that Alabama met the examina- tion portion of this requirement by providing for Dr. Goff's

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examination of McWilliams. See supra, at 190. But what about the other three parts? Neither Dr. Goff nor any other expert helped the defense evaluate Goff's report or McWil- liams' extensive medical records and translate these data into a legal strategy. Neither Dr. Goff nor any other expert helped the defense prepare and present arguments that might, for example, have explained that McWilliams' pur- ported malingering was not necessarily inconsistent with mental illness (as an expert later testifed in postconviction proceedings, see P. C. T. 936–943). Neither Dr. Goff nor any other expert helped the defense prepare direct or cross- examination of any witnesses, or testifed at the judicial sen- tencing hearing himself.

The dissent emphasizes that Dr. Goff was never ordered to do any of these things by the trial court. See post, at 212,

n. 5. But that is precisely the point. The relevant court

order did not ask Dr. Goff or anyone else to provide the de- fense with help in evaluating, preparing, and presenting its case. It only required “the Department of Corrections” to “complete neurological and neuropsychological testing on the Defendant . . . and send all test materials, results and evalua- tions to the Clerk of the Court.” T. 1612. Nor did the short timeframe allow for more expert assistance.

(Indeed, given that timeframe, we do not see how Dr. Goff or any other expert could have satisfed the latter three portions of Ake's requirements even had he been instructed to do so.) Then, when McWilliams asked for the additional assistance to which he was constitutionally entitled at the sentencing hearing, the judge rebuffed his requests. See supra, at 191–193.

Since Alabama's provision of mental health assistance fell so dramatically short of what Ake requires, we must con- clude that the Alabama court decision affrming McWilliams' conviction and sentence was “contrary to, or involved an un- reasonable application of, clearly established Federal law.”

28 U. S. C. § 2254(d)(1).

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The Eleventh Circuit held in the alternative that, even if the Alabama courts clearly erred in their application of fed- eral law, their “error” nonetheless did not have the “substan- tial and injurious effect or infuence” required to warrant a grant of habeas relief, Davis v. Ayala, 576 U. S. 257, 268 (2015) (internal quotation marks omitted). See 634 Fed.

Appx., at 707. In reaching this conclusion, however, the Eleventh Circuit only considered whether “[a] few additional days to review Dr. Goff's fndings” would have made a differ- ence. Ibid. It did not specifcally consider whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered. There is reason to think that it could have. For example, the trial judge relied heavily on his belief that Mc- Williams was malingering. See App. 188a, 211a. If McWil- liams had the assistance of an expert to explain that “[m]alin- gering is not inconsistent with serious mental illness,” Brief for American Psychiatric Association et al. as Amici Curiae 20, he might have been able to alter the judge's perception of the case.

Since “we are a court of review, not of frst view,” Cutter

v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we do not now

resolve this question. Rather we leave it to the lower courts to decide in the frst instance.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Alito, with whom The Chief Justice, Justice Thomas, and Justice Gorsuch join, dissenting.

We granted review in this case to decide a straightforward legal question on which the lower courts are divided: whether our decision in Ake v. Oklahoma, 470 U. S. 68 (1985), clearly established that an indigent defendant whose mental health will be a signifcant factor at trial is entitled to the

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assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.1

The answer to that question is plain: Ake did not clearly establish that a defendant is entitled to an expert who is a member of the defense team. Indeed, “Ake appears to have been written so as to be deliberately ambiguous on this point, thus leaving the issue open for future consideration.”

W. LaFave, Criminal Law § 8.2(d), p. 449 (5th ed. 2010) (La-

Fave). Accordingly, the proper disposition of this case is to affrm the judgment below.

The Court avoids that outcome by means of a most un- seemly maneuver. The Court declines to decide the ques- tion on which we granted review and thus leaves in place conficting lower court decisions regarding the meaning of a 32-year-old precedent.2 That is bad enough. But to make matters worse, the Court achieves this unfortunate result by deciding a separate question on which we expressly declined review. And the Court decides that fact-bound question without giving Alabama a fair opportunity to brief the issue.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief cannot be awarded

1 The question was worded as follows: “When this Court held in Ake that an indigent defendant is entitled to meaningful expert assistance for the `evaluation, preparation, and presentation of the defense,' did it clearly establish that the expert should be independent of the prosecution?”

2 Defending its approach, the Court says that it had no need to decide the “sweeping” question on which review was granted “when a narrow one will do.” Ante, at 198. Narrow holdings have their place, but here:

(1) We denied review of the narrow question; (2) the question decided is

not just narrow, it is the sort of fact-bound question as to which review is disfavored, see this Court's Rule 10; (3) the narrow question is not fairly included in the question presented, see this Court's Rule 14(a); (4) deciding the case on this narrow ground leaves in place the confict in the lower courts that supported the grant of certiorari; and (5) the parties were not given notice of this possible disposition, and the Court was thus deprived of the beneft of full briefng and argument on the issue.

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on a claim that a state court decided on the merits unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

28 U. S. C. § 2254(d)(1). That standard, by design, is “diff-

cult to meet.” White v. Woodall, 572 U. S. 415, 419 (2014) (internal quotation marks omitted). It requires habeas peti- tioners to “show that the state court's ruling on the claim . . . was so lacking in justifcation that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington

v. Richter, 562 U. S. 86, 103 (2011). Put another way,

“[w]hen reviewing state criminal convictions on collateral re- view, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v.

Donald, 575 U. S. 312, 316 (2015) (per curiam).

In Ake, we held that a defendant must be provided “access to a competent psychiatrist” in two circumstances: frst, “when [the] defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a signifcant factor at trial,” and, second, at the sentencing phase of a capital trial, “when the State presents psychiatric evidence of the defendant's future dangerousness.” 470 U. S., at 83.

The question that we agreed to review concerns the type of expert that must be provided. Did Ake clearly establish that a defendant in the two situations just noted must be provided with the services of an expert who functions solely as a dedicated member of the defense team as opposed to a neutral expert who examines the defendant, reports his or her conclusions to the court and the parties, and is available to assist and testify for both sides? Did Ake speak with such clarity that it ruled out “any possibility for fairminded disagreement”? Harrington, supra, at 103. The answer is “no.” Ake provides no clear guidance one way or the other.

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It is certainly true that there is language in Ake that points toward the position that a defense-team psychiatrist should be provided. Explaining the need for the appoint- ment of a psychiatric expert, Ake noted that a psychiatrist can “assist in preparing the cross-examination of a State's psychiatric witnesses” and would “know the probative ques- tions to ask of the opposing party's psychiatrists and how to interpret their answers.” 470 U. S., at 82, 80. And when Ake discussed expert assistance during capital sentencing, the Court said that it is important for a defendant to “offer a well-informed expert's opposing view” in the form of “re- sponsive psychiatric testimony.” Id., at 84. Ake also ex- plained that factfnding is improved when evidence is offered by “psychiatrists for each party.” Id., at 81. While it is possible for a neutral expert to provide these services, in our adversary system they are customarily performed by an expert working exclusively for one of the parties.

Other language in Ake, however, points at least as strongly in the opposite direction. Ake was clear that an indigent defendant does not have a constitutional right to “choose a psychiatrist of his personal liking or . . . receive funds to hire his own.” Id., at 83. Instead, the Court held only that a defendant is entitled to have “access” to “one competent psy- chiatrist” chosen by the trial judge. Id., at 83, 79.

These limitations are at odds with the defense-expert model, which McWilliams characterizes as “the norm in our adversarial system.” Reply Brief 3. As McWilliams ex- plains, “other litigants of means” screen experts to fnd one whose tentative views are favorable, and they often hire both consulting and testifying experts. Id., at 2–3. But the Ake Court was clear that it was not holding “that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy.” 470 U. S., at 77.

On the contrary, Ake expressly stated that a State need only

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provide for a single psychiatric expert to be selected by the trial judge. Thus, Ake does not give the defense the right to interview potential experts, to seek out an expert who offers a favorable preliminary diagnosis, or to hire more than one expert. And if the court-appointed expert reaches a conclusion unfavorable to the defendant on the issue of sanity or future dangerousness, Ake requires the defense team to live with the expert's unfavorable conclusions. As McWil- liams concedes, when the only expert available to indigent defendants is one selected by the trial court, these defend- ants “face a risk that their expert will ultimately be unwill- ing or unable to offer testimony that will advance their cause.” Reply Brief 3.

Ake also acknowledged that one of our prior cases, United States ex rel. Smith v. Baldi, 344 U. S. 561 (1953), “sup- port[ed] the proposition” that due process is satisfed if a defendant merely has access to a psychiatrist “not beholden to the prosecution.” 470 U. S., at 85. While Ake also de- clared that Baldi did not limit the Court “in considering whether fundamental fairness today requires a different re- sult,” 470 U. S., at 85, Ake did not explicitly overrule Baldi, and ultimately its treatment of that case was “most ambigu- ous,” LaFave § 8.2, at 450, n. 124.

It is also signifcant that the Ake Court had no need to decide whether due process requires the appointment of a defense-team expert as opposed to a neutral expert because Ake was denied the assistance of any psychiatrist—neutral or otherwise—for purposes of assessing his sanity at the time of the offense or his mental state as it related to capital sentencing. 470 U. S., at 71–73 (state experts who examined Ake and testifed he was dangerous evaluated him only in connection with his competency to stand trial). As Ake's counsel explained at argument, the Court could rule in his client's favor without accepting his client's “primary submis- sion” that due process requires the appointment of a defense- team expert. Tr. of Oral Arg. in No. 83–5424, p. 21 (arguing that Ake's rights were violated even under Baldi).

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Alito, J., dissenting In short, Ake is ambiguous, perhaps “deliberately” so.

LaFave § 8.2(d), at 449; see ibid. (“[C]omments supporting a move in either direction appear throughout the majority opinion in the case”). If the Justices who joined Justice Marshall's opinion for the Court had agreed that a defense- team expert must be appointed, it would have been a simple matter for the Court to say so expressly. Justice Marshall demonstrated this a few years later when he dissented from the denial of certiorari in a case that presented the very issue that the Court now dodges. Granviel v. Texas, 495

U. S. 963 (1990). There, Justice Marshall stated unambigu-

ously that “Ake mandates the provision of a psychiatrist who will be part of the defense team and serve the defendant's interests in the context of our adversarial system.” Ibid.

If all the Justices who joined the opinion of the Court in Ake had shared this view, there is no obvious reason for the ab- sence of the sort of clear statement that Justice Marshall would later provide when he wrote only for himself. The opinion in Ake has all the hallmarks of a compromise.

The Court's actions in the aftermath of Ake lend support to this conclusion. The Court repeatedly denied certiorari in cases that would have permitted it to resolve this question or others left open by Ake. See, e. g., Norris v. Starr, 513

U. S. 995 (1994); Vickers v. Arizona, 497 U. S. 1033 (1990);

Brown v. Dodd, 484 U. S. 874 (1987); Johnson v. Oklahoma, 484 U. S. 878 (1987); Granviel, supra, at 963. And in many of these cases (Vickers, Dodd, Johnson, and Granviel), Jus- tice Marshall dissented. The most reasonable conclusion to draw from the Court's silence is that the exact type of expert required by Ake has remained “an open question in our juris- prudence.” Carey v. Musladin, 549 U. S. 70, 76 (2006).

When the lower courts have “diverged widely” in assess- ing whether our precedents dictate a legal rule, that is a sign that the rule is not clearly established, ibid., and that is the situation here. At the time the Alabama court addressed

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McWilliams's Ake claim on the merits, some courts had held that Ake requires the appointment of a defense-team expert.

See, e. g., Smith v. McCormick, 914 F. 2d 1153, 1156–1160 (CA9 1990); United States v. Sloan, 776 F. 2d 926, 929 (CA10 1985). But others disagreed. The Fifth Circuit had held that a defense-team expert is not required. Granviel v. Ly- naugh, 881 F. 2d 185, 191–192 (1989), cert. denied, 495 U. S.

963 (1990). And the Oklahoma courts in Ake itself also in- terpreted our holding this way. Ake v. State, 778 P. 2d 460, 465 (Okla. Crim. App. 1989) (“[D]ue process does not entitle [Ake] to a state-funded psychiatric expert to support his claim; rather, due process requires that he have access to a competent and impartial psychiatrist”). So had at least seven other state high courts. Willie v. State, 585 So. 2d 660, 671 (Miss. 1991); State v. Hix, 38 Ohio St. 3d 129, 131– 132, 527 N. E. 2d 784, 787 (1988); Dunn v. State, 291 Ark. 131, 132–134, 722 S. W. 2d 595, 595–596 (1987); State v. Indvik, 382 N. W. 2d 623, 625–626 (N. D. 1986); Palmer v. State, 486

N. E. 2d 477, 481–482 (Ind. 1985); State v. Smith, 217 Mont.

453, 457–460, 705 P. 2d 1110, 1113–1114 (1985); State v. Hoo- pii, 68 Haw. 246, 248–251, 710 P. 2d 1193, 1195–1196 (1985).

Other courts struggled to reach agreement on the ques- tion. Two Eleventh Circuit panels held that a neutral ex- pert suffces, see Magwood v. Smith, 791 F. 2d 1438, 1443 (1986) (Ake satisfed where neutral, court-appointed experts examined the defendant and testifed); Clisby v. Jones, 907

F. 2d 1047, 1050 (1990) (per curiam) (“The state provided a

duly qualifed psychiatrist not beholden to the prosecution and, therefore, met its obligation under Ake”), reh'g en banc, 960 F. 2d 925, 928–934 (1992) (rejecting Ake claim on other grounds). But another Eleventh Circuit panel disagreed.

Cowley v. Stricklin, 929 F. 2d 640, 644 (1991) (holding that due process requires more than a neutral expert). A Sixth Circuit panel held that Ake does not require appointment of a defense-team expert. Kordenbrock v. Scroggy, 889 F. 2d 69, 75 (1989). And when the Sixth Circuit reviewed that

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decision en banc, its holding was fractured, but 7 of the 13 judges expressed the view that Ake requires only a neutral, court-appointed expert.3 919 F. 2d 1091, 1110, 1117–1120, 1131–1132 (1990).

Ake's ambiguity has been noted time and again by com- mentators. See, e. g., LaFave § 8.2(d), at 449 (Ake appears to be “deliberately ambiguous”); Mosteller, The Sixth Amendment Right to Fairness: The Touchstone of Effective- ness and Pragmatism, 45 Tex. Tech. L. Rev. 1, 16 (2012) (Ake held that “the defense had the right of access to an expert, but the Court did not conclude that access had to be a de- fense expert”); Greeley, The Plight of Indigent Defendants in a Computer-Based Age: Maintaining the Adversarial Sys- tem by Granting Defendants Access to Computer Experts, 16 Va. J. L. & Tech. 400, 426 (2011) (“[T]he Supreme Court should affrmatively state whether a defendant is entitled to a neutral expert working for the defense and the govern- ment, or an expert advocating for the defense”); Groendyke, Ake v. Oklahoma: Proposals for Making the Right a Reality, 10 N. Y. U. J. Legis. & Pub. Pol'y 367, 383 (2007) (“The inten- tions of the Ake Court regarding the role of the expert are

The Right to Expert Assistance in a Post-Daubert, Post-

3 The Sixth Circuit's experience, standing alone, is a telling refection of Ake's ambiguity. Years after Kordenbrock, a Sixth Circuit panel held that Ake requires a defense expert. Powell v. Collins, 332 F. 3d 376, 392 (2003). A later panel disagreed. Smith v. Mitchell, 348 F. 3d 177, 207– 208, and n. 10 (2003). A different panel concluded three years later that the Circuit had “extend[ed] Ake” to require a defense expert. Carter v.

Mitchell, 443 F. 3d 517, 526 (2006). A later panel insisted that “Ake does not entitle [defendants] to . . . an [independent psychiatric] expert,” but to “a `friend of the court' appointment.” Wogenstahl v. Mitchell, 668 F. 3d 307, 340 (2012). The Sixth Circuit ultimately concluded that Ake did not itself clearly compel an answer to this question for AEDPA purposes.

Miller v. Colson, 694 F. 3d 691, 698 (2012) (“[O]ur own internal confict about the scope of Ake evidences the reasonableness of the state court decision”).

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DNA World, 89 Cornell L. Rev. 1305, 1399 (2004) (“It is un- certain from Ake whether the appointment of a neutral ex- pert (who reports to the court) is suffcient or whether a `partisan' defense expert is required”); Bailey, Ake v. Okla- homa and an Indigent Defendant's `Right' to an Expert Wit- ness: A Promise Denied or Imagined? 10 Wm. & Mary Bill Rts. J. 401, 403 (2002) (“[C]ourts have struggled with whether an indigent is entitled to his own independent advo- cate or a neutral expert provided by the state,” and the Su- preme Court “has . . . failed to confront this ambiguity”); Sullivan, Psychiatric Defenses in Arkansas Criminal Trials, 48 Ark. L. Rev. 439, 492 (1995) (“The issue left unresolved in Ake” is whether the defendant has “merely the right to an evaluation by a neutral mental health expert”); Giannelli et al., The Constitutional Right to Defense Experts, 16 Pub.

Def. Rptr. 3 (Summer 1993) (“Ake fails to specify clearly the role of the expert—whether the appointment of a neutral expert, who reports to the court, satisfes due process, or whether a partisan defense expert is required”); Note, The Constitutional Right to Psychiatric Assistance: Cause for Reexamination of Ake, 30 Am. Crim. L. Rev. 1329, 1356 (1993) (calling this the “preeminent ambiguity” in the opin- ion); Harris, Ake Revisited: Expert Psychiatric Witnesses Remain Beyond Reach for the Indigent, 68 N. C. L. Rev. 763, 768, n. 44 (1990) (“The Court gave mixed signals concerning the psychiatrist's role with regard to a criminal defendant, resulting in lower court disagreement on the proper inter- pretation of Ake on this point”); Comment, A Question of Competence: The Indigent Criminal Defendant's Right to Adequate and Competent Psychiatric Assistance After Ake

v. Oklahoma, 14 Vt. L. Rev. 121, 127 (1989) (Ake “left unan-

swered many questions,” including “whether the defendant is entitled to `neutral' or `partisan' assistance”); Dubia, The Defense Right to Psychiatric Assistance in Light of Ake v.

Oklahoma, 1987 Army Lawyer 15, 19–20 (Ake “did not defne clearly the role of the state-supplied psychiatrist,” and “[a]

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strong case can be made that Ake requires only access to an independent psychiatric examination”); Note, Due Process and Psychiatric Assistance: Ake v. Oklahoma, 21 Tulsa L. J.

121, 143 (1985) (“The Court is unclear as to the exact nature and scope of the substantive right it has created”); Sallet, Book Review, After Hinckley: The Insanity Defense Reex- amined, 94 Yale L. J. 1545, 1551, n. 18 (1985) (predicting that “whether the Constitution requires one psychiatrist or rather one defense-oriented psychiatrist” would “likely be the next constitutional issue adjudicated”).

In this case, the Alabama courts held that Ake is satisfed by the appointment of a neutral expert, and it is impossible to say that “there could be no reasonable dispute that they were wrong.” Donald, 575 U. S., at 316.

McWilliams's petition for certiorari asked us to decide two questions. Pet. for Cert. i. The frst was the legal question discussed above; the second raised an issue that is tied to the specifc facts of McWilliams's case: whether the neutral ex- pert appointed in this case failed to provide the assistance that Ake requires because he “distributed his report to all parties just two days before sentencing and was unable to review voluminous medical and psychological records.” Pet. for Cert. i. Our Rules and practice disfavor questions of this nature, see this Court's Rule 10, and we denied review.

Heeding our decision, the parties briefed the frst question but scarcely mentioned anything related to the second.

The Court, however, feels no similar obligation to abide by the Rules. The Court refuses to decide the legal question on which we granted review and instead decides the question on which review was denied. The Court holds that “Ala- bama here did not meet even Ake's most basic require- ments.” Ante, at 197. In support of this conclusion, the Court states that neither Dr. Goff (the expert appointed by the trial judge) nor any other expert provided assistance in

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understanding and evaluating medical reports and records, preparing a legal strategy, presenting evidence, or preparing to cross-examine witnesses. Ante, at 199. The Court does not question Dr. Goff's qualifcations or his objectivity. In- stead, the crux of the Court's complaint is that Dr. Goff merely submitted his report and did not provide further as- sistance to the defense. Ibid. But as far as the record shows, Dr. Goff was never asked and never refused to pro- vide assistance to McWilliams. He did not provide the as- sistance that the Court fnds essential because his report was not given to the parties until two days before sentencing, and arrangements were not made for him to provide the as- sistance during that brief interlude. Thus, the question that the Court decides is precisely the question on which we de- nied review: namely, whether Dr. Goff's assistance was def- cient because he “distributed his report to all parties just two days before sentencing and was unable to review volumi- nous medical and psychological records.” Pet. for Cert. i.

Our Rules instruct litigants that we will consider only the questions on which review was granted and “subsidiary question fairly included therein.” This Court's Rule 14.1(a); Yee v. Escondido, 503 U. S. 519, 535 (1992) (The Court will consider an “unpresented question” only in “the most excep- tional cases” (internal quotation marks omitted)); see also this Court's Rule 24.1(a) (parties may not change the sub- stance of the question presented once granted). And we have not hesitated to enforce these Rules when petitioners who “persuaded us to grant certiorari” on one question in- stead “chose to rely on a different argument in their merits briefng.” Visa, Inc. v. Osborn, 580 U. S. 993 (2016) (internal quotation marks omitted) (dismissing cases as improvidently granted on this ground).

These Rules exist for good reasons. Among other things, they give the parties notice of the question to be decided and ensure that we receive adversarial briefng, see Yee, supra, at 536, which in turn helps the Court reach sound decisions.

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But in this case, the Court feels free to disregard our Rules and long-established practice. If McWilliams, after inducing us to grant certiorari on the frst question presented, had decided to ignore that question and instead brief a fact- specifc alternative theory, we would have dismissed the case as improvidently granted. We do not tolerate this sort of bait-and-switch tactic from litigants, and we should not en- gage in it ourselves.

The Court's approach is acutely unfair to Alabama. The State surely believed that it did not need to brief the second question presented in McWilliams's petition. The State vig- orously opposed review of that question, calling it “an invita- tion to conduct factbound error correction,” Brief in Opposi- tion 13, and we denied review. It will come as a nasty surprise to Alabama that the Court has ruled against it on the very question we declined to review—and without giving the State a fair chance to respond.4

It is worth remembering that today's ruling requires the Court to conclude that the state court's treatment of McWil- liams's Ake claim “was so lacking in justifcation that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U. S., at 103. This “standard is diffcult to meet,” id., at 102, and Alabama would surely have appreci- ated the opportunity to contest whether McWilliams has met

4 The Court is incorrect in suggesting that Alabama “devoted an entire section of its merits brief ” to the question that the Court decides. Ante, at 198. In the section to which the Court refers, Alabama argued that even if McWilliams was entitled to relief under Ake to a partisan expert, no relief was warranted because he “had a consulting expert that did not report to the State,” i. e., “a psychologist employed at the University of Alabama,” and because the trial court ordered every form of testing that the defense requested. Brief for Respondents 50–52. Exactly six sen- tences of the State's briefng in this section, id., at 52, touch on the services provided by Dr. Goff and the trial court's denial of a continuance. The State's inclusion of this feeting discussion cannot justify a decision based on a question on which review was denied.

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it. Denying Alabama that chance does not show “[a] proper respect for AEDPA's high bar for habeas relief,” which coun- sels restraint in “disturbing the State's signifcant interest in repose for concluded litigation, denying society the right to punish some admitted offenders, and intruding on state sov- ereignty to a degree matched by few exercises of federal authority.” Virginia v. LeBlanc, ante, at 96 (per curiam) (alterations and internal quotation marks omitted).

It is debatable whether the Court has even answered ques- tion two correctly (and, of course, meaningful briefng by the parties would have allowed the Court to answer the question with more confdence).5 But the fundamental point is that the Court should not have addressed this question at all.

Having completed an arduous detour around the question that we agreed to decide, the majority encounters an incon- venient roadblock: The Court of Appeals has already deter- mined that any error of the sort the majority identifes today

5 The Court never even recites the applicable standard: whether the Ala- bama courts erred beyond fairminded disagreement in rejecting McWil- liams's claim under Ake v. Oklahoma, 470 U. S. 68 (1985). Harrington v.

Richter, 562 U. S. 86, 103 (2011). This bar is diffcult for a habeas peti- tioner to hurdle, and it is far from clear that McWilliams has done so. The Court says that Dr. Goff did not play the role Ake requires of an expert because he only examined McWilliams and reported his fndings to the trial court. Ante, at 198–199. But that is exactly what the trial court (at McWilliams's request) ordered him to do. Rec. 1615, 1616. The Court briskly concludes that Dr. Goff did not assist the defense in understanding his report prior to the hearing or testify for McWilliams at the judicial sentencing hearing. Ante, at 199. But the Alabama Court of Criminal Appeals found “no indication in the record that [McWilliams] could not have called Dr. Goff as a witness to explain his fndings or that he even tried to contact the psychiatrist to discuss his fndings.” McWilliams v.

State, 640 So. 2d 982, 991 (1991). And the Eleventh Circuit saw no reason why McWilliams's defense team could not have been in contact with Dr.

Goff while he was preparing the report. McWilliams v. Commissioner, Ala. Dept. of Corrections, 634 Fed. Appx. 698, 706–707 (2015) (per curiam).

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was harmless. So the majority relies on the thinnest of rea- sons to require the Eleventh Circuit to redo its analysis.

That conclusion is unwarranted, and nothing in the majority opinion prevents the Court of Appeals from reaching the same result on remand.

The majority claims that the Court of Appeals did not “specifcally consider whether access to the type of meaning- ful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered.” Ante, at

200. But the Court of Appeals concluded that, even if Dr.

Goff's performance did not satisfy Ake, the error did not have a substantial and injurious effect on the outcome of the sentencing proceeding. McWilliams v. Commissioner, Ala.

Dept. of Corrections, 634 Fed. Appx. 698, 706–707 (CA11 2015) (per curiam). Thus, the Court of Appeals specifcally addressed the very question that the majority instructs it to consider on remand.

If the majority disagrees with the Court of Appeals' deci- sion on that question, it should explain its reasons, but the majority is unwilling to tackle that matter and instead re- cites that “we are a court of review, not of frst view.” Ante, at 200 (internal quotation marks omitted). The Court's in- vocation of this oft-used formulation is utterly inapt because the Eleventh Circuit has already reviewed the question of harmless error. Moreover, unlike the question that the ma- jority does decide, the harmless-error issue was at least briefed in a meaningful way by the parties. Brief for Peti- tioner 41–46; Brief for Respondents 52–56; Reply Brief 14–16.

Had the Court confronted the harmless-error issue, it would have found it diffcult to reject the Court of Appeals' conclusion that any Ake error here was harmless. In 1984, McWilliams “raped, robbed, and murdered Patricia Vallery Reynolds.” McWilliams v. State, 640 So. 2d 982, 986 (Ala.

Crim. App. 1991) (internal quotation marks omitted).

Reynolds was a clerk at a convenience store in Tuscaloosa,

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Alabama. Ibid. McWilliams robbed the store, brutally raped Reynolds in a back room, then left her on the foor to die after shooting her six times execution style with a .38- caliber pistol. Ibid. After McWilliams was apprehended, he bragged to other jail inmates about what he had done.

Id., at 987. The jury needed less than an hour of delibera- tion to fnd him guilty, and it recommended the death penalty by a 10-to-2 vote the following day. Id., at 986.

Agreeing with the jury's nonbinding recommendation, the trial court imposed the death penalty based on three aggra- vating circumstances. McWilliams had prior violent felony convictions for frst-degree robbery and frst-degree rape.

App. 182a–183a. He murdered Reynolds in the course of committing a robbery and rape. Id., at 183a. And his crime “was especially heinous, atrocious, or cruel”: He exe- cuted the only potential eyewitness to his robbery, and his conduct during and after the crime showed an “obvious lack of regard or compassion for the life and human dignity of the victim.” Id., at 184a. Balanced against these three aggra- vators was McWilliams's claim that he was psychotic and suffered from organic brain dysfunction—the mitigating evidence that Dr. Goff's report supposedly would have supported. But the sentencing court concluded that this ev- idence “d[id] not rise to the level of a mitigating circum- stance,” in part because of the extensive evidence that McWilliams was feigning symptoms. Id., at 188a. And in any event, the sentencing court found that “the aggravating circumstances would far outweigh this as a mitigating cir- cumstance.” Ibid. (emphasis added).

The majority hints that the sentencing court's weighing might have been different if McWilliams had been afforded more time to work with Dr. Goff to prepare a mitigation presentation and to introduce Dr. Goff's testimony at the sentencing hearing. But there is little basis for this belief.

The defense would have faced potential rebuttal testimony from three doctors who evaluated McWilliams and frmly

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concluded that McWilliams's mental state did not reduce his responsibility for his actions. Rec. 1545 (Dr. Yumul) (Mc- Williams “ `was responsible and free of mental illness at the time of the alleged offense' ”); id., at 1546 (Dr. Nagi) (McWil- liams “ `was not suffering from a mental illness' ” at the time of the crime and “ `[t]here see[m] to be no mitigating circum- stances involved in [his] case' ”); ibid. (Dr. Bryant) (fnding no “evidence of psychiatric symptoms of other illness that would provide a basis for mitigating factors at the time of the al- leged crime”). One of these psychiatrists also concluded that McWilliams was “ `grossly exaggerating his psychological symptoms to mimic mental illness' ” and that he “ `obviously' ” did so “ `to evade criminal prosecution.' ” Ibid. (Dr. Nagi).

Even Dr. Goff found it “quite obvious” that McWilliams's “symptoms of psychiatric disturbance [were] quite exagger- ated and, perhaps, feigned.” Id., at 1635. In light of all this, the defense would have faced an uphill battle in convinc- ing the sentencing judge that, despite McWilliams's consist- ent malingering, his mental health was so impaired that it constituted a mitigating circumstance and that it outweighed the three aggravators the State proved. If the sentencing judge had thought that there was a possibility that hearing from Dr. Goff would change his evaluation of aggravating and mitigating factors, he could have granted a continuance and called for Dr. Goff to appear. But he did not do so.

The majority also ignores the fact that McWilliams has already had the chance to show that the outcome of the sen- tencing proceeding would have been different if he had been given more expert assistance. In state postconviction pro- ceedings, McWilliams argued that he was denied effective assistance of counsel because his lawyers did not obtain an expert who would have fully probed his mental state for purposes of mitigation. McWilliams called an expert, Dr.

Woods, who offered the opinion that McWilliams suffered from bipolar disorder at the time of the crime and testifed that McWilliams's exaggeration of symptoms was not incon-

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sistent with psychiatric problems. But Dr. Woods also ac- knowledged that McWilliams “tr[ied] to malinger for pur- poses of making himself look worse than he is,” agreed that this malingering could have been done for the purpose of avoiding the death penalty, and declined to say that Mc- Williams's disorder explains why he raped and murdered Reynolds. Rec. 1002–1005, 1022–1023. Dr. Woods even en- dorsed Dr. Goff's conclusion that McWilliams “exaggerated certain aspects of his impairment.” Id., at 955 (“I think Dr.

Goff did an excellent job of attempting to separate out what were in fact exaggerations and what was real impairment”).

The State introduced a psychologist of its own (Dr. Kirkland) who strenuously disagreed with Dr. Woods's diagnosis and concluded that nothing “indicate[s] that Mr. McWilliams was mentally impaired on the night of the offense.” Id., at 1088.

At the end of a lengthy hearing in which both experts ad- dressed the malingering issue (see, e. g., id., at 935–943, 955, 964–966, 1076–1077), the state postconviction court found that “McWilliams's claims based upon the testimony of Dr.

Woods are without merit.” Id., at 1810. It credited the “consensus opinion” reached by the three neutral state psy- chiatrists, who observed and evaluated McWilliams for over a month before his trial and concluded that he “did not suffer from a mental illness.” Id., at 1812. It expressly found that “both the credibility of Dr. Woods and the reliability of his fndings are questionable.” Id., at 1814. And even if Dr. Woods's diagnosis was accurate, the court stated, it “[would] not fnd that a failure to present” evidence of this sort “made a difference in the outcome.” Id., 1815.6 The

6 Dr. Goff was notably absent from the postconviction proceeding. Mc- Williams's failure to call him as a witness there creates a “void in the record” that prevents McWilliams from carrying his burden of showing “how additional time with Dr. Goff (and his report) would have benefted the defense.” 634 Fed. Appx., at 712 (Jordan, J., concurring). It also suggests that, to McWilliams's postconviction counsel, Dr. Goff's diagnosis and the opportunity to present it to the sentencer was not as important as McWilliams suggests.

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Alabama Court of Criminal Appeals affrmed, McWil- liams v. State, 897 So. 2d 437 (2004), and the Alabama Su- preme Court denied review. I see no ground for disturbing the Eleventh Circuit's decision on harmless error.7

* * *

The Court's decision represents an inexcusable departure from sound practice. I would affrm the judgment below, and I therefore respectfully dissent.

7 McWilliams's entitlement to relief under Ake is questionable for an additional reason. Ake held that the right to a psychiatric expert at capi- tal sentencing comes into play “when the State presents psychiatric evi- dence of the defendant's future dangerousness.” 470 U. S., at 83–84, 86.

Here, the State did not introduce such evidence because future dangerous- ness was not an aggravator under Alabama law. See App. 182a–184a.

As lower courts have noted, we have never held that a capital defendant is entitled to the assistance of a psychiatric expert at sentencing where future dangerousness is not in issue and the State does not introduce psy- chiatric evidence to prove it. See, e. g., Revilla v. Gibson, 283 F. 3d 1203, 1220–1221 (CA10 2002) (“Ake held only that an indigent capital defendant must, upon request, be provided an expert for the penalty phase when the State presents psychiatric evidence of the defendant's future dangerous- ness” (internal quotation marks omitted)); Ramdass v. Angelone, 187 F. 3d 396, 409 (CA4 1999) (“Ake provides a right to assistance of a mental health expert only if . . . , in arguing future dangerousness in the sentencing phase, the prosecution used expert psychiatric testimony”); Goodwin v.

Johnson, 132 F. 3d 162, 189 (CA5 1997), as amended Jan. 15, 1998 (“Ake only creates an entitlement to the assistance of a psychiatrist during sen- tencing when the state offers psychiatric evidence of the defendant's fu- ture dangerousness” (emphasis deleted)).