The Supreme Court is all set by the end of this month to overrule a major part of the landmark abortion rights decision, Roe v. Wade, notwithstanding the legal doctrine known in Latin as stare decisis. In the meantime, the Republican-packed Court took a whack last week [June 8] at another, fifty-year-old civil rights precedent by gutting the legal remedy for violations of constitutional rights by federal law enforcement agents.
The 6-3 decision in Egbert v. Boule blocked a suit by a Washington state innkeeper, Robert Boule, against a U.S. Border Patrol agent, Erik Egbert, for shoving Boule to the ground after Boule asked Egbert to leave the premises. Egbert had followed an arriving guest onto the property, with no grounds to suspect the international guest of having entered the country illegally. In his federal court lawsuit, Boule accused Egbert of violating his Fourth Amendment protection against unreasonable search and seizure.
Boule summoned a Border Patrol supervisor and another agent to the scene to review Egbert’s action. Together, the three of them determined that the international visitor had entered the United States lawfully. To add insult to injury, Egbert decided to get even with Boule by asking the Internal Revenue Service to review Boule’s tax status. Nothing came of it, but Boule included in his lawsuit an allegation that Egbert violated his First Amendment right to freedom of speech by retaliating against him for complaining to Egbert’s supervisor.
Boule naturally thought he had a good Fourth Amendment claim against Egbert based on the Court’s earlier decision in Bivens v. Six Unknown Named Agents of the Bureau of Narcotics (1971) that allowed a private damage suit against federal narcotics agents who wrongfully invaded Bivens’ home and strip-searched him without grounds for the raid. The 6-3 decision in Bivens implied a private right of action against federal law enforcement agents on the ground that state or local law enforcement officers can be held liable under a specific federal law for violating individuals’ constitutional rights.
The Court issued its decision in Bivens before a succession of Republican presidents packed the bench with partisan Republicans, committed more to politics than to law. The trend that started with Nixon reached its peak over the past few years as President Donald J. Trump succeeded, with the help of Senate Republican leader Mitch McConnell, in appointing three rock-ribbed conservatives to the Court, each of them narrowly confirmed by party-line votes in the Senate.
Trump demonstrated his own contempt for precedent by pledging during his presidential campaign to appoint justices who would vote to overrule Roe v. Wade. All three of his appointees – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – acknowledged Roe v. Wade during their confirmation hearings as settled precedent. And yet, according to the leaked draft opinion in the pending abortion case, the three of them joined two other Republican-appointed justices, Samuel Alito and Clarence Thomas, in voting to overrule an important element of the Roe v. Wade decision and to give states much more leeway to regulate abortion procedures and to limit access to abortion.
The pending case, Dobbs v. Jackson Women’s Health Organization, tests a Mississippi law that bans abortions roughly after the sixth week of pregnancy, in contradiction of the Roe v. Wade holding that guarantees a woman’s right to terminate an unwanted pregnancy until the fetus is capable to surviving outside the womb, roughly around the twenty-fourth week of pregnancy.
Mississippi’s Republican-controlled legislature and Republican governor enacted the law with the deliberate plan to give the Supreme Court a clear shot at overruling Roe v. Wade. When the Court heard oral arguments in the case in December, Justice Sonia Sotomayor ominously warned of a likely backlash against the Court if the conservatives defied the public opinion polls that confirm majority support for retaining Roe v. Wade.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor asked Mississippi’s solicitor general, Scott Stewart, during his time at the lectern. “I don’t see how it is possible.”
Sotomayor is likely to lead the dissenters later this month when the conservative majority decide that they are ready to issue Alito’s draft decision in the case. Fittingly, Sotomayor minced no words last week when she led the three liberal justices in dissenting from the majority’s decision to ditch Boule’s Fourth Amendment claim against the overzealous Border Patrol agent Egbert.
The majority’s decision, Sotomayor wrote, “contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers … of an important remedy.” She batted away the make-weight arguments that Thomas included in his majority opinion to distinguish Boule’s lawsuit from the suit that the Court had recognized in Bivens.
“Boule’s claim is materially indistinguishable from the claim brought in Bivens,” Sotomayor wrote, dismissing as irrelevant the supposed national security issues entailed in immigration enforcement at the U.S. border. “Allowing [Boule’s] claim to proceed would not require courts to intrude into ‘the discussion and deliberations that led to the formation’ of any policy or national-security decision or interest,” Sotomayor contended.
The ruling, she warned, would weaken any protection that Americans have from overzealous Border Patrol agents such as Egbert. “CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury,” Sotomayor wrote. The decision, she argued further, “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.”
The decision, Sotomayor added, “shrinks Bivens in the core Fourth Amendment law enforcement sphere where it is needed most.” In a final passage, Sotomayor noted with some relief that the Court had not overruled Bivens in its entirety. She also cautioned lower court judges against making too much of the decision. “[T]the lower courts should not read it to render Bivens a dead letter,” she wrote.
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