Letter from Seth Barrett Tillman to the Honorable Clarence Thomas on Suggested Sources for a Future Citation

Abstract

In DeVillier v. Texas, the Court stated:




"Constitutional rights do not typically come with a built in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983."



DeVillier v. Texas, 601 U.S. 285, 291 (Apr. 16, 2024) (Thomas, J., for a unanimous Court). I note that the second sentence above, announcing the “DeVillier Doctrine,” although arguably implicit in prior decisions of the Court, appears to announce a new and important principle governing the litigation of federal constitutional rights. Surprisingly, the DeVillier Court announced this doctrine absent any citations to prior Supreme Court authority, any other judicial authority, or even any scholarly authority. My purpose in this letter is to fill in that gap for you, that is, to suggest several sources that you might want to turn to should the Court return to the DeVillier Doctrine in future cases.