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Fourth Circuit Refuses to Follow Supreme Court Precedent; And Why Should They, Since Precedents Will Likely Shift

As is his custom, Fourth Circuit Judge Wilkinson refuses to follow Supreme Court precedent when that precedent would require an outcome with which he disagrees; and when his handiwork would likely escape Supreme Court review.  In Holly v. Scott (here), he and another activist judge reach the extraordinary conclusion that operating a federal prison is not a government function.  Thus, an employee of a private prison corporation cannot be sued under Bivens.

My mouth is still gaping open, as this outcome is so outrageously wrong that I am at a loss for words.  In Malesko (here) after all, the Supreme Court assumed that a person could sue a private prison guard.  The assumption was so obvious that it wasn't even stated in the opinion, since decades-old precedent holds that private actors performing traditional government functions act under color of law. This is so obvious that every first year law student in the country would realize that a private prison guard acts under color of law. 

Anyhow, if this case goes upstairs, it might very well be affirmed.  Scalia would overrule Bivens if he could, as Justice Thomas and soon-to-be-Justice Alito likely would.  Heck, the only marginally uncertain votes would be Chief Justice Roberts and Justice Kennedy.  Despite protests from conservative commentators, Justice Kennedy has shown marked hostility towards civil rights litigants.  And does anyone think Chief Justice Roberts would join the four liberal justices in a potentially watershed case like Scott v. Holly?  Like Gonzaga University v. Doe (here), Holly could be the, as Chief Justice Rehnquist characterized Gonzaga, the "sleeper case" of the next Term.

A constitutional revolution is coming, folks, and its victims will not include cases like Roe v. Wade.  It will be technical doctrines like state action and Bivens that find their heads on the chopping block.  The only issue with this case is this: Will Scalia be able to obtain four votes to obtain Court review when the cert. petition is invariably filed?  Or will he wait, concerned that Roberts and Alito might not quite be ready for the revolution?  If this case is reviewed, I predict a 5-4 outcome in favor of affirmance.

(Hat tips go to Donald Caster at All Deliberate Speed and Robert Loblaw, who have commentary here and here.)