“The U.S. Supreme Court ruled..in the West Virginia v. Environmental Protection Agency that it “is a major questions case.” As such, the Court ruled 6–3 that the Environmental Protection Agency (EPA) did not have clear authority from Congress to regulate the entire U.S. electric power production industry through exercising “unheralded power representing a transformative expansion of its regulatory authority in the vague language” in a rarely used section of the Clean Air Act. This decision will likely curtail future efforts by the Biden administration to significantly cut the emissions of carbon dioxide from fossil-fuel-burning power plants that contribute to man-made global warming.”
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“So what is the major questions doctrine? “The Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by clear statutory authorization,” explained the Congressional Research Service in a recent analysis. Certainly, the huge costs imposed by new regulations that are not clearly authorized by Congress would seem to qualify as an issue of national significance. In fact, in his majority opinion, Chief Justice John Roberts notes, “EPA’s own modeling concluded that the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors.””
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“In her dissent, Associate Justice Elena Kagan counters by pointing out the Obama administration’s EPA calculated that by 2030 the annual public health and climate benefits of proposed regulations under its Clean Power Plan would be between $34 to $54 billion while the costs would amount to $8.4 billion. While electricity would cost more, consumers would save $7 monthly on their electric bills due to increased energy efficiency. A 2016 study in the journal PLOS One similarly found that the health co-benefits outweighed the costs incurred from reducing carbon dioxide emissions.
Despite the fact that the benefits of costly and transformative regulations might outweigh their costs that still does not mean for the Court’s majority that their issuance is not a major question requiring clear direction from Congress before going forward.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,'” concludes Chief Justice Roberts. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in [the Clean Air Act]. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.””
“The problem with the Bork/Alito view of Lochner is that it is wrong as a matter of constitutional text and history. Indeed, the drafting and ratification history of the 14th Amendment make clear that the amendment was originally understood to protect a broad range of unenumerated rights, including the right to economic liberty, sometimes called liberty of contract, which was the very right at issue in Lochner.
Consider the words of Rep. John Bingham, the Ohio Republican who chiefly authored the first section of the 14th Amendment, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.” In other words, the 14th Amendment was designed to protect, among other things, an unenumerated right to economic liberty.
Even those who opposed the 14th Amendment’s ratification said as much at the time. For example, Rep. Andrew Jackson Rogers (D–N.J.) complained to the House in 1866 that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities.” “The right to contract is a privilege,” he observed, adding, “I hold if that [the 14th Amendment] ever becomes a part of the fundamental law of the land, it will prevent any state from refusing to allow anything to anybody embraced under this term of privileges and immunities.”
To say the least, the fact that both advocates and opponents of the 14th Amendment agreed on its meaning at the time of ratification is strong originalist evidence in support of the Lochner Court’s reasoning and outcome. Contrary to the junk history peddled by Bork and Alito, Lochner is not a dirty word.”
You wouldn’t be blamed for having to consult Google to answer that question. The Founders are rolling in their graves anyway.
It’s the right to a trial by jury, and it’s one that society has all but disposed of—despite the Framers’ insistence that it be included in the Bill of Rights as one of the primary bulwarks against government tyranny.
They didn’t exactly mince words. “Representative government and trial by jury are the heart and lungs of liberty,” wrote John Adams. “Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”
One wonders what animalistic metaphors Adams would conjure today if he could see the U.S. criminal justice system in motion: one in which about 97 percent of trials are resolved without juries, devoid of the sacrosanct lifeblood that keeps human liberty from death by suffocation.
That tool has been supplanted by the plea bargain. In popular culture, that’s widely seen as advantageous to defendants. In reality, it’s been disastrous. It epitomizes government coercion. It epitomizes what the Founders warned against.”
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“The bulk of a prosecutor’s job is not spent in the hallowed halls of a courtroom participating in a high-stakes battle over someone’s liberty, all while journalists wait in the wings to capture the victor’s speech on marble steps. It’s spent in backrooms, with district attorneys “charge-stacking,” or filing multiple criminal charges against someone for the same offense, calculating a grisly potential prison sentence, and offering to make some of that go away—so long as the defendant in question does not exercise his or her constitutional right to a trial by jury.
If they refuse, then they will risk a substantially higher time behind bars, not because a prosecutor views it as necessary for public safety but because he or she dared to inconvenience them with a trial. After all, what the defendant is accused of didn’t change. But trials are expensive. And the government can never be sure when it will win, so better to avoid them where possible.
That latter part—the uncertainty—is supposed to be the point. It’s true that many criminal defendants are guilty. It’s also true that some are innocent and have been forced to pay with their liberty anyway. A person who is not guilty likely wants to go to trial. But why risk a decade behind bars for insisting on your Sixth Amendment right when you could be out in two or three?”
“the Supreme Court handed down a brief, 5-4 decision that effectively places Drew Tipton, a Trump-appointed federal trial judge in Texas, in charge of many of Immigration and Customs Enforcement’s (ICE) decisions about which immigrants to target.
The decision was largely along party lines, except that Justice Amy Coney Barrett joined the Court’s three Democratic appointees.
The decision in United States v. Texas is temporary, but the upshot of this decision is that Tipton will effectively wield much of Homeland Security Secretary Alejandro Mayorkas’s authority over how ICE officers prioritize their time for as much as an entire year — and that’s assuming that the Biden administration ultimately prevails when the Court reconsiders this case next winter.
At issue in this case is a perfectly standard decision Mayorkas made last September. Federal law provides that the secretary of homeland security “shall be responsible” for “establishing national immigration enforcement policies and priorities.” Pursuant to this authority, Mayorkas issued a memo to ICE’s acting director, informing him that the agency should prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
Then-secretaries of homeland security issued similar memos setting enforcement priorities in 2000, 2005, 2010, 2011, 2014, and 2017.
Not long after Mayorkas handed down his memo, however, the Republican attorneys general of Texas and Louisiana went to Tipton, a Trump judge with a history of handing down legally dubious decisions halting Biden administration immigration policies, asking Tipton to invalidate Mayorkas’s memo. Tipton obliged, and an especially conservative panel of the United States Court of Appeals for the Fifth Circuit allowed Tipton’s order to remain in effect.
DOJ asked the Supreme Court to stay Tipton’s decision, temporarily restoring an elected administration’s control over federal law enforcement while this case proceeds. But the Court just refused. And it did so without explanation.”
“The Second Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, it is the rare constitutional provision that not only declares the existence of a right, but also states the reason why this right exists. The purpose of the Second Amendment is to protect “a well regulated Militia.” That’s what the plain text of the Constitution provides.
But Thomas’s opinion in Bruen, much like the Court’s earlier decision in District of Columbia v. Heller (2008), thumbs its nose at the text of the Constitution.”
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“The immediate impact of Bruen is that handguns — which are responsible for the overwhelming majority of gun murders in the United States — are likely to proliferate on many American streets. That’s because Bruen strikes the types of laws that limit who can legally carry handguns in public, holding that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
The case involves a 109-year-old New York state law which requires anyone who wishes to carry a handgun in public, whether openly or concealed, to demonstrate “proper cause” before they can obtain a license to do so. An applicant must show “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”
Similar laws exist in five other states — California, Hawaii, Maryland, Massachusetts, and New Jersey — plus the District of Columbia. Together, these jurisdictions make up about a quarter of the US population, and a much higher percentage of the country’s urban population. In effect, that has meant very few residents of those states have been able to legally carry a handgun in public.
Writing solely for the Court’s Republican appointees, Justice Clarence Thomas strikes down New York’s century-old law. He also establishes a whole new (confusing) framework for evaluating gun control laws. Bruen establishes a “text, history, and tradition test” that purports to be rooted in, well, the text of the Constitution, and the history of English and early American gun laws.
In reality, however, Thomas’s new test takes extraordinary liberties with the text of the Second Amendment, which explicitly states that the purpose of the right to bear arms is to protect service in a militia.
And when it comes to “history,” “the Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical,” as Breyer chastises Thomas in dissent. That’s because judges are ill-equipped to conduct the kind of multi-century historical survey that Thomas’s new framework demands.
Worse, Thomas announces that the government bears the burden of showing that any gun law “is consistent with this Nation’s historical tradition of firearm regulation.” But if “tradition” is so important, why must New York’s 100-year-old law fall? As a practical matter, moreover, that Thomas places the burden of proof on the government means many gun laws are likely to fall because, when the historical record is unclear, the government loses.”
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“As the Court explained in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”
But Heller upended that. And quoting from Heller, Thomas writes that “individual self-defense is ‘the central component’ of the Second Amendment right.” And therefore gun regulations should be judged according to whether they undermine this atextual purpose invented by Republican appointees to the Supreme Court.
Similarly, Thomas writes that courts should determine whether a modern-day gun regulation fits within the nation’s historical traditions by drawing “historical analogies” to early American gun laws.
Thomas’s opinion suggests that these analogies may need to be drawn to laws that existed in 1791, when the Second Amendment was ratified; or that they may need to be drawn to laws that existed in 1865 — when the Fourteenth Amendment, which requires states to comply with the Second Amendment, was ratified. It declines to resolve questions about which date matters, however, adding another layer of confusion for judges forced to apply Bruen.
In any event, there are fairly obvious reasons why it is hard to draw reliable analogies between modern-day regulations and laws from earlier centuries. Federal law, for example, prohibits civilian ownership of machine guns. But the machine gun was invented in 1884. So a judge searching for early American laws regulating automatic weapons will come up empty, because machine guns did not exist during either the Founding Era or the Reconstruction Era. Does this mean that a ban on machine guns is unconstitutional?
Thomas also writes that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” In other words, modern gun laws that address problems that existed in the 1700s are likely to fall, unless similar laws existed in the 18th century.
For this reason, Thomas concludes that a handgun ban like the one struck down in Heller is unconstitutional because the framers did not ban handguns in order to combat the problem of “firearm violence in densely populated communities.”
But this reasoning is anachronistic. According to the 1790 census, New York City had only 33,131 residents around the time when the Second Amendment was ratified. The second-largest city, Philadelphia, had fewer than 29,000 residents.
Eighteenth-century Americans, in other words, simply did not confront the problem of “firearm violence in densely populated communities.” The most densely populated communities in the 18th-century United States had roughly the same number of people as a small town in modern-day America.”
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“this litany of long-forgotten laws does little to clarify the question of what the framing generation (or perhaps people during Reconstruction) thought about the right to carry a firearm without a permit on city streets. The bottom line is that the six Republican appointees surveyed many centuries worth of gun laws and concluded that they support the Republican Party’s preferred stance on firearms; while the three Democratic appointees surveyed the same laws and concluded that they support the Democratic Party’s preferred stance on firearms.
In fairness, Thomas does offer a workaround for the problem that many modern weapons — from machine guns to intercontinental ballistic missiles — did not exist until very recently and therefore were not regulated by early American lawmakers.
The lesson of history, Thomas claims, is that the Second Amendment protects the right of civilians to carry weapons that “are ‘in common use at the time.’” So an amendment that may have protected the right to own a musket in 1790 now protects the right to own a handgun, because handguns are now commonly used by civilians. Similarly, even Thomas would likely concede that the Second Amendment does not permit civilians to own tanks, nuclear warheads, or other weapons that are not commonly possessed by civilians in 2022.
Judges will no doubt have an easier time determining what kinds of guns are in common use in 2022 than they will determining what 18th-century gun laws have to say about the B-2 stealth bomber. But Thomas’s need to rely on such a workaround from his “text, history, and tradition” framework only emphasizes the uselessness of that framework.”
“The Supreme Court handed down a landmark decision in Kennedy v. Bremerton School District on Monday, overruling a 1971 case laying out how the government must keep its distance from religion.
But Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied.”
(Justice Brett Kavanaugh did not join a brief section of Gorsuch’s opinion concerning the Constitution’s free speech protections, but Gorsuch otherwise spoke for the Court’s entire Republican majority.)
Because Gorsuch misrepresents the facts of this case, it’s hard to assess many of its implications.
The Court’s decision to explicitly overrule Lemon v. Kurtzman, the 1971 decision that previously governed cases involving the Constitution’s language prohibiting “an establishment of religion,” has obvious implications for future lawsuits: Lower court judges will no longer apply Lemon’s framework to establishment clause cases.
But it’s not clear how those lower court judges should now navigate questions about the separation of church and state. Although the Court overrules Lemon, it does not announce a fleshed-out test that will replace Lemon. Instead, Kennedy announces a vague new rule that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”
Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer.
If the facts of Kennedy actually resembled the made-up facts laid out in Gorsuch’s opinion, then Kennedy would have reached the correct result. Even under Lemon, a public school employee is typically permitted to quietly pray while they are not actively engaged with students.
Gorsuch’s opinion, however, describes a very different case than the one that was actually before the Court.”
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“In the real case that was actually before the Supreme Court, Coach Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer.
After games, Kennedy would also walk out to the 50-yard line, where he would kneel and pray in front of students and spectators. Initially, he did so alone, but after a few games students started to join him — eventually, a majority of his players did so. One parent complained to the school district that his son “felt compelled to participate,” despite being an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”
When the Bremerton school district learned of Kennedy’s behavior, it told him to knock it off — though it did offer to accommodate Kennedy if he wanted to pray when he wasn’t surrounded by students and spectators. And Kennedy did end some of his most extravagant behavior, such as the prayer sessions where he held up the helmets while surrounded by kneeling students.
But Kennedy also went on a media tour, presenting himself as a coach who “made a commitment with God” to outlets ranging from local newspapers to Good Morning America. And Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games.
At the next game following this tour, coaches, players, and members of the public mobbed the field when Kennedy knelt to pray. A federal appeals court described this mob as a “stampede,” and the school principal said that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.
And, contrary to Gorsuch’s repeated claims that Kennedy only wanted to offer a “short, private, personal prayer,” Kennedy was surrounded by players, reporters, and members of the public when he conducted his prayer session after that game. We know this because Justice Sonia Sotomayor includes a picture of the scene in her dissenting opinion.
Gorsuch dismisses this photographic evidence by claiming that “not a single Bremerton student joined Mr. Kennedy’s quiet prayers” after this game — he claims that the players depicted in this photograph are “from the opposing team.”
Whether those players are from the Bremerton school district or not, that doesn’t change the fact that Kennedy engaged in very public prayer sessions, and did so while acting as an official representative of a public school. Nor does it change the fact that, after he was ordered to cease this activity, Kennedy went on a media tour that seemed designed to turn his supposedly “quiet prayers” into a public political spectacle, a spectacle that both players and spectators eagerly participated in.”
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“if the facts of this case resembled the false facts laid out in Gorsuch’s opinion, then Gorsuch would have a point. Public school employees may engage in private acts of devotion, such as saying a prayer over their lunch in a school cafeteria while they are on the job.
But there’s nothing private about a school employee conducting a media tour touting his plans to pray at the 50-yard line of a football field immediately after a game. There is nothing private about the coach carrying out that plan — especially when he does so surrounded by kneeling players, cameras, and members of the public.”
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“Kennedy will no doubt inspire other teachers and coaches to behave similarly to Coach Kennedy, but those teachers and coaches will do so at their own peril. Gorsuch’s opinion doesn’t weigh whether a coach is allowed to do what Kennedy actually did. That remains an open question, because the Court did not actually decide that case.”
“West Virginia v. Environmental Protection Agency strikes down a federal environmental regulation of power plants that never took effect, that the Biden administration has no intention of reinstating, and that would have accomplished absolutely nothing even if it had be enforced.
Nevertheless, the Court voted along ideological lines to strike down this regulation that the EPA drafted under authority granted by the Clean Air Act, claiming that it amounts to an “extraordinary” overreach by the EPA. And their decision has enormous implications both for the environment and for the federal government more broadly.
At the very least, the West Virginia decision strips the EPA of its authority to shift energy production away from dirty coal-fired plants and toward cleaner methods of energy production — although market forces have thus far accomplished much of this shift on their own, because coal-fired plants are often more expensive to operate than cleaner plants. The decision could also lead to additional limits on the EPA’s ability to regulate that industry going forward.
The West Virginia decision confirms something that has been implicit in the Supreme Court’s recent decisions governing federal agencies’ power to issue binding regulations under authority granted by Congress: When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation — and it will do so by invoking something known as the “major questions doctrine.”
Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.
This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution — leaning heavily on the fact that abortion is not mentioned in the Constitution. But the the major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up. And, at least during President Joe Biden’s administration, the Court has wielded it quite aggressively to veto regulations that the Court’s conservative majority finds objectionable.
Roberts’s majority opinion in West Virginia does put some flesh on the fairly bare bones the justices have previously used to describe when they will declare something to be a “major question.” Roberts faults the EPA for issuing a novel kind of regulation pursuant to a “long-extant” statute that had not previously been used to justify similar actions. He claims that the EPA relied on an “ancillary provision” of the Clean Air Act, rather than a more central provision of that law. And he criticizes the EPA for issuing a regulation which resembles bills that Congress previously considered but did not enact.
But these judgments are divorced from the text of the Clean Air Act itself. And Roberts admits that the major questions doctrine can nuke a regulation even when there is a “colorable textual basis” supporting that regulation — that is, when the actual words of a federal law could support the action taken by a federal agency.
The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.”
“For a long time, the Supreme Court had been conceived in popular imagination and civic culture as a protector of minority rights. The legal circles of the twentieth century grappled with the theory of “counter-majoritarian difficulty,” which held that the judiciary was a necessarily antidemocratic institution because in declaring a statute or executive action unconstitutional, they overruled the will of the people as expressed through their representatives, while another camp asserted that the Court could continue to advance democracy if it devoted itself to reinforcing the representation of minorities in political process.
But in 2022, such theories are growing ever more distant from reality. As one scholar put it in the California Law Review, the U.S. electorate is becoming “more racially and ethnically diverse, more geographically concentrated and homogeneous, and more divided, not only in its partisan affiliations, but in its values and its prospects for the future.”
The Court, however, has used its power neither to serve as a countermajoritarian counterweight nor to reinforce representation of a growing multiracial electorate. The result: A court that enables the entrenchment of “a shrinking white, conservative, exurban numerical minority to exert substantial control over the national government and its policies.””
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““You have a situation in which a minority party is imposing an ideological agenda that has been rejected by a clear majority of the country,” he said. Today, only one of the five justices who signed onto Dobbs was nominated by a president who won the popular vote, and one of them only made it to the court because of Republicans’ unwillingness to give former president Barack Obama’s nominee, now-Attorney General Merrick Garland, a hearing.”
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“This year, the Court also invalidated a regulation that permitted large workplaces to establish vaccine-or-test requirements. It also struck down a Maine ban on using taxpayer money to fund private religious schools. One day before Dobbs, it threw out a 100-year-old New York law that required gun owners to show “proper cause” to obtain conceal-carry permits, making it easier to carry a concealed gun in public…it also sided with a Christian high school football coach, allowing him to pray at the 50-yard line, even though the Court had held in 1962 that school-sponsored prayer violated the separation of church and state.”
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“The decisions that came after were no less significant. While the Court did clear the way for Biden to end the Trump-era “Remain in Mexico” policy, it also expanded the power of states to prosecute crimes on Indigenous reservations based on a state’s interest in public safety within “its territory,” and it curtailed the power of the Environmental Protection Agency to reduce greenhouse emissions.
On the last day of its term, the Court also agreed to hear a case that could give state legislatures exclusive and near-absolute power to regulate federal elections in their states.”
“The U.S. Supreme Court’s 2021-2022 term is not yet over and it is already going down in the books as a terrible term for criminal justice reform. A pair of recent dissents by Justice Sonia Sotomayor spotlights the sorry state of affairs.
First, in Shinn v. Ramirez, the Court held that a death row inmate who received ineffective state-appointed counsel at both trial and postconviction state court proceedings is now barred from presenting new exculpatory evidence—evidence of actual innocence—in federal court. “Innocence isn’t enough,” declared the state attorney during oral arguments, insisting that the federal courts must defer to the flawed state proceedings.
“This decision is perverse,” wrote Sotomayor in dissent. “It is illogical.” She is right on both counts. As The Washington Post’s Radley Balko has detailed, “every court to consider the actual merits of [death row inmate] Barry Jones’s innocence claim has ruled that he never should have been convicted of murder. And every court to rule against Jones did so for procedural reasons without considering the new evidence. If Jones is executed, it will not be because there is overwhelming evidence of his guilt. It will be because of a technicality.””
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“The second notable Sotomayor dissent came in Egbert v. Boule, a ruling which shielded a border patrol agent from being sued in federal court for his alleged violations of the First and Fourth Amendments. Among its many sins, this outcome made a mockery of the Court’s 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which said that federal officers may indeed be sued in federal court for alleged Fourth Amendment violations.
“Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boule’s complaint,” wrote Sotomayor in dissent.
She is again right on all counts. Innkeeper Robert Boule alleged that Border Patrol Agent Erik Egbert assaulted him on his own property after Boule asked Egbert to leave. That Fourth Amendment complaint does not differ in any meaningful way from the Fourth Amendment complaint at issue in Bivens.
Thanks to the Supreme Court’s flawed judgment, Sotomayor observed, Customs and Border Protection (CBP) “agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.” So much for the Fourth Amendment when a federal officer is involved.”