On the Bivens claim, Justice David Souter first addressed if the Court should create a remedy for what Robbins faced, since, although he could vindicate his complaints, he suffered, in his words, “death by a thousand cuts;” in Souter’s words, “endless battling” that “depletes the spirit along with the purse.” Unable to answer that question, Souter then balanced the government’s need for “zeal on the public’s behalf” against a citizen’s need to battle “illegitimate pressure” by “unduly zealous” bureaucrats. On that too, Souter fell short of a “workable cause of action.” Congress was in a “better position” to write it, he concluded.
As to RICO, which bars obtaining property by threat or under color of official right, Souter held Congress was concerned with the “harm of public corruption, by the sale of public favors for private gain, not [with] the harm caused by overzealous efforts to obtain property on behalf of the Government.” Otherwise, wrote Souter, a RICO action “could well take the starch out of regulators who are supposed to bargain and press demands vigorously on behalf of the Government and the public.” If Congress meant differently, it would have said so.
Robbins’ experience, although extreme, is not exceptional. Thus, it is unfortunate the Supreme Court declined to provide beleaguered property owners a remedy, but it is not alone. Congress has little interest in oversight; elected officials demur if matters are “in litigation.” Moreover, bureaucrats operate largely without supervision; likewise their lawyers, who never question their clients’ motives and seek, not justice, but victory. Finally, in court, agencies, their employees, and their lawyers receive the benefit of every doubt. No wonder bumper stickers in the West read, “I love my country, but fear my government.”