0:00:00.0 Speaker 1: We will hear argument this morning in case 21-147, Egbert versus Boule.

[music]

0:00:11.0 Andrew Parsons: Hey, everyone. This is Andrew Parsons from Prologue Projects. Leon is away this week. On this episode of 5-4, what happens when a Border Patrol agent violates your constitutional rights?

0:00:23.1 Speaker 3: The case involves the owner of an inn near the Canadian border, who said a US Border Patrol agent used excessive force against him. He sued.

0:00:31.5 Andrew Parsons: But you actually can't sue, not according to the Supreme Court. In a six to three decision handed down earlier this year, the Justices made it nearly impossible to sue federal officials for damages. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:52.7 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our civil rights weak and cowering like a police officer during a school shooting. I'm Peter. I'm here with Rhiannon.

0:01:06.2 Rhiannon: Hey, everybody. Hello.

0:01:07.9 Peter: And Michael.

0:01:09.3 Michael: Hi.

0:01:09.9 Peter: Sorry, we took a week off. So I'm a little late with it. But I had to bring it.

0:01:14.6 Michael: Yeah.

0:01:14.7 Rhiannon: Yeah. Yeah, yeah, yeah. Fitting.

0:01:16.5 Peter: Today's case is Egbert v. Boule. This is a case from just a couple of weeks ago, about whether you can sue federal officials for violating your constitutional rights. There is a law, Title 42, Section 1983, generally referred to as just Section 1983, that allows people to sue state officials who violate their constitutional rights. So if a state police officer smacks you with a baton for no reason, you can at least theoretically, sue for damages.

0:01:49.2 Rhiannon: Right.

0:01:50.1 Peter: But the law does not apply to federal officials. So there's a question of what you can do when a federal official violates your rights. Can you sue them for damages? In the 1970s, in a case called Bivens v. Six Unnamed Federal Agents, the court held that you can sue federal agents who violate your rights for damages, at least in some circumstances. And then conservatives took hold of the court and spent 40 years limiting the circumstances in which you could actually sue.

0:02:21.3 Rhiannon: That's right.

0:02:22.0 Peter: This has left a gaping hole in our Constitution where federal officials can openly and even intentionally violate your rights. And not only do they suffer no consequences, but there's just nothing you can do about it at all.

0:02:36.6 Michael: This fucking case.

[laughter]

0:02:40.9 Peter: So there's a man running an inn near the Canadian border in Washington State. And he's assaulted and then subsequently harassed by a Border Patrol agent. And he sues, claiming that his First and Fourth Amendment rights were violated. But the Supreme Court, in a six to three decision, written by Clarence Thomas, tells him he's out of luck. 'Cause whether or not his rights were violated, he has no right to sue. So, Rhi, I feel like the context here is pretty spicy. This is a fun one.

0:03:14.8 Rhiannon: Yeah, there's some interesting facts here. There's a Smugglers Inn. There's an international border. Yeah, lots of juicy stuff. So let's get into it. This case comes out of Washington State, close to the border with Canada. So Robert Boule owns a bed and breakfast there, right along the border with Canada. And it's a bed and breakfast that's actually known as The Smugglers Inn, because it's known that guests at this bed and breakfast sometimes illegally cross the border. And federal agents have also seized large shipments of drugs from The Smugglers Inn.

0:03:50.7 Michael: This guy rocks.

0:03:51.9 Peter: Yeah.

[laughter]

0:03:52.4 Rhiannon: Yeah. This is the party bed and breakfast. [laughter] Robert Boule, the owner, of course knows that all of this is happening at his bed and breakfast. And actually he was charged in 2018 by the Canadian government for allegedly helping people across the border into Canada illegally. Those charges were later dropped. But let's just say he's on the feds' radar. This place is called The Smugglers Inn by locals. So anyways, Border Patrol certainly knows about the activities of the inn. And as a result, Robert Boule had acted as a paid CI, a confidential informant for Border Patrol and immigration official.

0:04:32.9 Peter: Less cool. Not cool, Robert.

0:04:34.8 Rhiannon: Yeah. He had done this at various times throughout the years, been a snitch. So that's a bit of background. But let's turn to the specific events that give rise to this case. In March of 2014, Boule had a guest at the inn who had recently arrived in the US from Turkey. The guest was lawfully present in the United States. But Border Patrol, they're are a bunch of assholes. So one agent, Eric Egbert, wanted more information about this guy. Egbert drove onto Boule's property. And he approached the car where the Turkish guest was sitting in the parking lot. Robert Boule intervened though. He asked Egbert to leave his property. And the agent, Egbert refused. When Egbert refused to leave, Boule actually put his body in between the Border Patrol agent and the Turkish guest, right next to the guy's car. So Egbert turns around and grabs Boule, slams him into the car and pushes him to the ground.

0:05:33.3 Rhiannon: So Boule complained about this treatment to Egbert's supervisor. He filed an official kind of grievance with Border Patrol. Egbert though learned about the complaint. And he turns around and retaliates against Boule by contacting the IRS and asking the IRS to investigate Boule's taxes. So he's getting another federal agency involved. So Robert Boule says, "Look, enough of this bullshit." And he sues Eric Egbert. He's saying his constitutional rights were violated in two ways. First, he says that Agent Egbert violated his Fourth Amendment rights by physically assaulting him on his property when Boule told Egbert to leave. And then secondly, Boule says his First Amendment rights were violated because he should have been allowed to complain to an agent supervisor without retaliation from the agent.

0:06:21.5 Michael: That's right. There's another little bit of retaliation I wanna mention, which is that he also... This fascious prick also reported Boule to some state agency because his license plate, his vanity license plate said "smuggler" on it. And he reported it for referencing illegal activity.

0:06:45.6 Rhiannon: And I did not see that. That's great.

0:06:47.8 Michael: Yeah, it's fantastic.

[laughter]

0:06:50.5 Peter: So let's talk about the law bit here first. Because it's fairly technical. There's this overarching question here about what you do when the government violates the Constitution. The Constitution lays out what the government can and cannot do, but it doesn't really explain what is supposed to happen when the government does something that it's prohibited from doing. So the question is, can courts create a remedy for people whose constitutional rights are violated? Historically, the answer has depended on what type of remedy the person is seeking. So a quick aside here first. This case is about whether the court can create a remedy for people who are seeking damages from federal officials. So we'll be using the term court made remedies or judge made remedies a lot. That's all we mean. Courts have been very willing to grant injunctions, which are just court orders directing the government to stop doing something that violates the Constitution. But there are some violations that injunctions can't solve. When an officer use excessive force on you, the damage is already done. An injunction is not gonna do you any good. You want compensation for your injury.

0:08:06.1 Michael: "I'm getting an injunction," as a cop is like punching you in the face.

0:08:09.9 Rhiannon: Right, right. Exactly.

0:08:11.1 Michael: "I'm filing for declaratory and injunctive relief."

0:08:14.3 Rhiannon: Right.

[laughter]

0:08:15.5 Michael: You're in so much trouble.

[laughter]

0:08:17.6 Peter: So, I mentioned Section 1983, a law that allows people to sue state officials who violate their constitutional rights for damages. But again, no equivalent for federal officials. And so in 1971, in that case called Bivens, the court says, "Okay, even though there's no law saying this, you can sue federal officials who violate your rights for damages." And the basic reasoning is pretty simple. If you can't sue for this stuff, then federal officials can just violate your rights at will. There needs to be some way to enforce your rights in these circumstances. Conservatives have never liked this, and have spent decades whittling away at it. In fact, the court has rejected every Bivens claim since 1980.

0:09:07.8 Rhiannon: Wow.

0:09:09.0 Peter: And so we get to this case. And there are two big questions. One, the immediate question, how will they resolve Boule's case? And two, the bigger question, are they going to shut down any avenue for suing federal officials for damages, get rid of Bivens once and for all?

0:09:28.5 Rhiannon: All together, right?

0:09:30.3 Peter: And then maybe three, are constitutional rights a real thing or just a joke thing? What's going on with them?

0:09:37.3 Rhiannon: Could y'all please answer that question? Yeah.

0:09:40.0 Peter: So Boule has sued seeking damages for violations of both his First and Fourth Amendment rights. He says that he was roughed up by the officer, violating his Fourth Amendment rights. Then he complained and was retaliated against. And that's a First Amendment violation. And the majority tells him, of course, to fuck off. And we will walk through their reasoning. First, Clarence Thomas starts off with a pretty lengthy discussion basically of how he thinks Boule is a shady dude. And he just sort of talks about the criminal history involved, some of which is a little bit speculative. And he says like, "Boule had a scheme going where he would escort folks for money, presumptively across the border. And then he would alert Border Patrol."

0:10:30.8 Michael: And he'd inform on them, and then keep their money.

0:10:33.5 Peter: Right, and keep the money. So he's doing like snitch stuff. And Thomas is trying to say like this guy is kind of an asshole. Although what he skips over is Border Patrol's part of that scheme, sounds like... I don't...

0:10:45.8 Rhiannon: Right, exactly.

0:10:46.3 Michael: Yeah.

0:10:47.0 Rhiannon: Sounds like there's two parties here working in conjunction with one another. Yeah.

0:10:51.0 Peter: Right. They're literally working together, that's why. He's a paid CI, like he's literally fucking working with them.

0:11:00.5 Michael: Yeah.

0:11:00.6 Rhiannon: You know, another thing Thomas does is list out all the drugs, you know what I mean? Instead of just saying, "Drugs were being trafficked through this bed and breakfast," he's like, "Methamphetamine, cocaine, marijuana," like all of the baddest things you could do think of.

0:11:14.0 Michael: The other thing I liked about this was that he's trying to make him sound like a real exploitive asshole, like taking money from these people he's informing on. But it comes off where he's kind of like, "Can you believe this shady shit? And he's a snitch."

0:11:28.6 Rhiannon: Right. Right. Yes. Yes.

[laughter]

0:11:32.0 Michael: It really comes up like he thinks snitching is a moral character flaw as well.

0:11:39.3 Rhiannon: Yeah.

0:11:40.3 Peter: The other part of this is he really blurs the line between things that have happened at the end and things that Boule was involved in. He's like, "There have been busts at the end." And it's like, "Well, was he involved or was it just like because there is smuggling going on in the vicinity?" And Thomas doesn't say.

0:11:57.8 Michael: Were those busts because he told CBP? He's out there like, "Somebody brought drugs into my inn."

0:12:03.5 Rhiannon: Yeah, exactly.

0:12:04.3 Michael: And, "Come get them."

0:12:06.0 Peter: And look, the one thing to note here, all of this aside, is that this is completely irrelevant to the analysis, right?

0:12:13.1 Rhiannon: Exactly.

0:12:13.8 Michael: Nothing to do with this.

0:12:15.0 Peter: Not like in my opinion, but like actually.

0:12:18.0 Michael: Yeah, legally.

0:12:19.3 Rhiannon: Right.

0:12:19.5 Peter: Literally, just an aside that Thomas starts with, it has no legal bearing on the case. This is very similar to what we've discussed in criminal cases where Conservative Justices will often describe the defendant's crime in brutal detail even though it's not relevant to the analysis. So you might ask yourself why they do this, why explain that you think this guy is engaged in shady dealings when it's legally not relevant. And the answer is simple. It serves to the court as a justification for the brutality that they are about to deliver upon this person.

0:12:53.8 Rhiannon: Exactly.

0:12:54.0 Peter: Right?

0:12:54.1 Rhiannon: Yup.

0:12:56.5 Peter: Years ago, there was this kind of famous message board comment, defining conservatism as being one proposition. There is an in-group that the law protects, but does not bind. And an out-group that the law binds but does not protect. And that's what's happening here. Clarence Thomas is just identifying him as the out-group. I have my own version of this, which is just good boy versus bad boy theory. And Clarence Thomas is telling you, "This is a bad boy."

0:13:27.2 Michael: That's right.

0:13:28.2 Rhiannon: Boule is a bad guy.

0:13:31.8 Peter: "We are not going to be deferential toward his rights."

0:13:34.2 Michael: Who else do we think he's a good boy and a bad boy on Thomas' list?

0:13:37.2 Peter: Ginni Thomas is a good boy.

0:13:39.0 Michael: Yeah. Donald Trump, good boy.

0:13:41.5 Rhiannon: Yeah.

0:13:42.4 Peter: That's a good boy. That's your classic good boy.

[laughter]

0:13:45.6 Michael: Bill Burr with all that nasty testimony he was giving before the January 6 committee, bad boy.

0:13:49.9 Rhiannon: Bad boy.

0:13:50.6 Peter: He's becoming a bad boy. Yeah. He used to be a good boy. He lost his way. Alright. So then we get into the actual relevant stuff. And Thomas starts talking about the factors that the court generally uses for establishing whether a plaintiff can pursue damages against a federal official under Bivens. And the primary questions are whether the case involves a new context that the court hasn't seen before, and whether there are any special factors that would counsel against allowing him to sue in that new context, if so. But Thomas actually sort of tosses that aside and says, "This just boils down to one question, is there any reason that we, the Supreme Court, should be the ones to provide a remedy here instead of Congress? Congress hasn't said that you can sue for damages. So is there any reason that we should?" That's the only question that needs to be addressed. Pretty interesting first because he's just tossing out the precedent and replacing it with his own little analysis, and also because the question is basically rhetorical. Thomas does not believe that the court should be creating remedies in these cases. So he's always gonna answer the question by rejecting the claim, right?

0:15:01.7 Rhiannon: Yeah, yeah.

0:15:02.2 Michael: That's right.

0:15:02.8 Rhiannon: He's acting like he's answering this question sort of seriously, like going through these factors. And, "I really wanna find an answer to this question, yes or no." But it's Clarence Thomas. We know his answer to the question.

0:15:16.8 Peter: Yeah.

0:15:17.1 Michael: Right.

0:15:17.3 Peter: He really just sort of has his hand faced up here. He then proceeds to argue that the facts of this case, because it involves Border Patrol, which implicates national security, that counsels against allowing for a lawsuit to proceed. Because the court is not competent to fashion a remedy against Border Patrol agents. He's sort of using this analysis that they used in Hernandez v. Mesa, which was one of our earlier episodes. And it's just like, "Well, look, we don't mess around with national security. We are just the court. Who are we to say that some Border Patrol agent shouldn't shove this guy to the ground?"

[laughter]

0:15:57.9 Rhiannon: Right, or in the case of Hernandez v. Mesa, shoot and kill a child.

0:16:02.1 Michael: Yeah.

0:16:02.2 Peter: Right.

0:16:02.9 Michael: Yeah, shoot a kid across the border.

0:16:05.8 Peter: We're gonna need experts to weigh in on whether this fucking Egbert idiot can shove a man to the ground for no reason other than he's angry.

0:16:13.3 Rhiannon: Right. And also retaliate against him exercising his First Amendment rights, with the power of the federal government.

[laughter]

0:16:19.9 Peter: Right.

0:16:22.0 Michael: Right, that's... Yeah. Yeah, the retaliatory claim, that's really... That's national security interests right there, for sure.

0:16:29.2 Rhiannon: Fuck off.

0:16:30.2 Michael: This is sort of important though, like Peter said, you're basically coming out and saying in so many words, if not outright, that the court won't entertain these sorts of claims against Border Patrol. And so it's important to note that Border Patrol's jurisdiction covers over 200 million people. That's most of the country.

0:16:54.8 Peter: Most of the country.

0:16:55.6 Rhiannon: Right.

0:16:56.1 Michael: They can operate within 100 miles of the border, which covers a massive number of cities along the physical border of the United States, including like in some cases, like entire states, like I think the entire state of Florida, the entire state of Hawaii, a lot of New England. But also, that includes international airports as well. So any inland city with an international airport is basically entirely within the jurisdiction of the Border Patrol, which is kind of scary if they have this sort of blank check to violate your rights. And so it's worth just taking a minute to understand where this comes from. So Border Patrol was created in the 1920s as part of a very racist immigration act, The Johnson-Reed Act, which was designed to keep all those swarthy-skinned, nasty people from immigrating from France and Spain, and Eastern Europe.

0:17:57.1 Michael: They wanted to limit immigration to Great Britain and Germany and the Nordic countries. And originally, it was understood that they would only operate within a few miles of the border. But very quickly, they started forays into the city. And there was some talk about passing legislation. But in the '40s, it basically... They just said within a reasonable distance of the border. At that point, they were part of the Department of Justice. And there was a memo written which in a footnote, said that meant within 100 miles of the border. And that's it.

0:18:30.5 Rhiannon: Whoa.

0:18:31.0 Michael: That's how that came to be. And that's basically... [chuckle] And ever since.

0:18:36.7 Peter: Unbelievable. An entire Gestapo out of a footnote.

0:18:40.6 Rhiannon: Right.

0:18:40.7 Michael: Yeah.

0:18:40.9 Rhiannon: Right.

0:18:41.1 Michael: They could change that to five miles tomorrow, if they wanted to. I mean, they might need notice and public comment and all that shit. But given that none of that happened in the creation of the rule, I'm not even convinced they would necessarily need that. They'd at least have a color book claim. They don't. So this is very much a choice. This is a policy choice that we've just sort of accepted that we're gonna let these SS pricks run wild over most of the country.

0:19:09.0 Rhiannon: Yeah.

0:19:09.6 Peter: Right. So there's also the question of the First Amendment claim. Boule is saying, "Hey, I made a complaint and you retaliated against me." And Thomas is like, "Well, first of all, we've never allowed a First Amendment claim under Bivens. And so this is a new context. And we shouldn't allow it because if we did, it would unduly inhibit officials in the discharge of their duties." Which is how lawyers say would make their jobs harder, I guess. And it's like, first of all, would it have made his job harder if he didn't call the IRS to get them to investigate this? I feel like you're gonna have to walk me through that one, Clarence.

0:19:52.3 Rhiannon: Right, exactly. Like you're saying it makes a federal agent's job harder if he's not allowed to retaliate against people? That actually seems like more work if you're just retaliating left and right.

0:20:03.4 Peter: And we've actually talked about this before. Because they use this rationale to allow cops to run wild all the time. And it's like, yeah. Like rules tend to make things slightly harder.

0:20:14.1 Michael: Yes.

0:20:14.9 Rhiannon: Yes.

0:20:16.0 Michael: The point of the Bill of Rights is to make the federal government's job harder.

0:20:21.0 Rhiannon: Exactly.

0:20:21.7 Peter: Speed limits make it harder to get to work. That's not an argument against him. It's just like... But that's like... That's all of the analysis. He's just like, "Yeah, well, as you know, if cops have to think for a second about whether they are harassing someone illegally, that would distract them so much that they would not be able to do their jobs."

0:20:41.9 Rhiannon: Yeah.

0:20:42.3 Peter: It's fucking unbelievable.

0:20:45.7 Michael: He's such a fascist prick. He really is the biggest fascist on the court.

0:20:51.5 Peter: Yeah.

0:20:52.3 Michael: We've talked about this in war on terror cases. We've talked about this in school discipline cases, in school speech cases.

0:21:00.8 Rhiannon: Oh yeah, yeah. Rights of students. Yeah.

0:21:02.6 Michael: He is a fucking fascist freak. They gotta get him off the court, man. Somebody's gotta get him off the court.

[laughter]

0:21:11.7 Rhiannon: I mean, we're one cheeseburger away.

0:21:13.5 Peter: On the other hand, the Libs don't even dissent from this part, right?

0:21:17.4 Michael: Yes, yes.

0:21:18.5 Peter: They sign on to the First Amendment part of this. They dissent from the Fourth Amendment claim about excessive force. But they're like, "Good point, Clarence."

0:21:25.9 Michael: It's wild.

0:21:26.7 Peter: I don't understand how Sotomayor could not see this for what it is. It boggles the mind.

0:21:33.4 Michael: We'll talk about her dissent. But I think that it's got a lot of weaknesses and this is one.

0:21:36.5 Peter: Yeah.

0:21:37.4 Rhiannon: Yeah.

0:21:37.8 Peter: Yeah.

0:21:37.8 Michael: For sure.

0:21:38.0 Peter: There's also the Gorsuch concurrence, which is essentially him saying, "Hey, great opinion, Clarence. But we should all just admit that we need to throw out Bivens. It's done for. We haven't allowed a new Bivens claim in 42 years. Let's just admit that we're all done with it and it doesn't exist. And that's that."

0:21:58.5 Michael: Yeah. I think my favorite part of his opinion, and Sotomayor in dissent quotes him on this as well, where he flat out admits that you can't really distinguish this case from Bivens. They're hanging their hat on the fact that it's a Border Patrol agent but this isn't really border enforcement. This is an American citizen on American soil on his property. A federal agent entering an American citizen's property without a warrant and then using excessive force. That is Bivens.

0:22:27.8 Rhiannon: Yes.

0:22:27.9 Michael: Those were the facts of Bivens. This is indistinguishable. And he's like, "Candidly, this is Bivens. And I agree that we shouldn't do this because we should overturn Bivens." But what you're doing is smoking mirrors. He's like... In a sense, he's calling out the majority for being full of shit, which is correct.

0:22:47.7 Peter: He does it in a very friendly way where he's like, "I appreciate that you're trying to simplify this by ignoring the Bivens test that we're supposed to be using."

0:22:57.0 Michael: "That we wrote ourselves four years ago."

0:23:00.9 Peter: Right, right. But he's like, "Well, I think that we should all just lift the veil. It's time." Right?

0:23:07.6 Michael: Yeah, yeah.

0:23:08.9 Peter: "We have the power. Let's do it." And it is sort of surprising that Thomas wouldn't be on board to do it. I don't entirely understand why.

0:23:14.2 Rhiannon: Right.

0:23:14.8 Michael: I do think Gorsuch is maybe the most immodest, if that's the right word, of the Conservative Justices. And sometimes that's good. And sometimes it's bad. It's like here, he's like, "Let's just admit it. We're getting rid of Bivens. And we shouldn't like pussy foot around it." And he does that with liberal causes as well. On the ray of things that he's good on, with tribal rights, he's like, "It doesn't matter that we've been violating tribal sovereignty for 150 years. If it's wrong, it's wrong. We should just get rid of it. It doesn't matter if the Insular Cases are this... Have been in place for 100 years. They're awful, racist, colonialist precedent. We should get rid of them." Right?

0:23:54.4 Rhiannon: Right.

0:23:55.8 Michael: But that's also, it doesn't matter that the administrative state has massive reliance interests on it. We should get rid of that too. He's just, I think immodest is the right word. He's like a very sort of like, "Let's just fucking do it and be legends," sort of Justice.

0:24:11.5 Rhiannon: Yeah.

0:24:12.0 Peter: It feels, and this is just sort of vibing out his writing, that it's predicated on arrogance a little bit.

0:24:18.5 Michael: I think that's right.

0:24:19.6 Rhiannon: Yes.

0:24:19.7 Peter: But he very much believes that he is the smartest person in every room.

0:24:22.5 Rhiannon: Oh, for sure.

0:24:23.4 Michael: He's like, "I'm right. I know I'm right. So let's just do it. And let's stop pretending like we have any humility about this and just do it right, and do the right thing." Just too bad that 85% or 95% of the time what he thinks is the right thing is just absolutely heinous and brutal.

0:24:39.8 Peter: Yeah. He is, I think, maybe the truest believer in Conservative jurisprudence. He's the guy who's like the nerd who is deep in the academic theory of all of this, more than someone like Alito, who's just a pure hack. Thomas has his moments. But I don't think he reaches Gorsuch levels.

0:25:00.2 Michael: No. There was another line I wanted to mention from Gorsuch's concurrence that was driving me nuts, which he says, "To create a new cause of action is to assign new private rights." And no, that's not... There's no new private right here. The right is the Fourth Amendment.

0:25:16.7 Peter: The right's in the Constitution.

0:25:18.1 Rhiannon: Right.

0:25:18.3 Peter: Right.

0:25:18.7 Rhiannon: It's the Fourth and First Amendment. I can point to them.

0:25:21.5 Michael: The First and Fourth Amendments.

[laughter]

0:25:23.3 Peter: It's so bizarre that that's what they think the... The right is not the right to sue.

0:25:27.4 Rhiannon: Right.

0:25:27.8 Michael: No. Nor is it the right to the money.

0:25:31.0 Peter: The right is not to be brutalized.

0:25:31.9 Michael: Not to have your property trespassed upon, and not to be thrown to the ground, to be physically assaulted. That's the right.

0:25:38.8 Rhiannon: Yeah, exactly.

0:25:39.8 Michael: The question is whether you have any remedy when that right is violated. That's the only question. That's it.

0:25:46.7 Rhiannon: Yeah. And wanna highlight that this is about whether or not Boule has a claim, whether he can get to court. This isn't about like, "Oh, they awarded him damages. And it's too much compensation. And you don't have a right to that." That's not what it is. It's, do you have a right to get into court to vindicate your rights that are in the Constitution?

0:26:09.1 Michael: Yeah.

0:26:09.3 Peter: Right.

0:26:09.9 Rhiannon: And they frame it as like, "Oh, that would be giving new rights to people, new private rights that we do not like."

0:26:19.5 Michael: It's fucking insane. It is.

0:26:23.0 Rhiannon: Well, Sotomayor writes a dissent, Michael. What's that like?

[laughter]

0:26:35.3 Michael: It's funny you should ask, Rhiannon. Her dissent, that was kind of weak. It's got some good points in there. I think she's trying to build up to this final point, which she makes at the very end, which I think is a good one, which is that Congress has been sort of legislating in the shadow of Bivens, this case, we're talking about for 50 years. And that includes some of the statutes in issue here, the Federal Tort Claims Act, which is implicated in this case. And so Thomas is saying in the majority like, "Look, we don't want to step on Congress's toes here. That's not our job to fashion these sorts of avenues for relief. That's Congress's job." I don't know that I agree with that.

0:27:27.4 Michael: We'll discuss that later. But the important thing is that Congress has been legislating for decades, in amending statutes and passing statutes about this stuff with Bivens on the book, available as a remedy. So every first year law student will tell you that it's understood that that means those statutes basically incorporate what's going on at the courts. Congress isn't naive. They understand what else is going on. And so the meat of her opinion is try to demonstrate how Thomas has essentially changed the standard they use and how that itself... He's changing it from a standard they came up with four years ago, and how that itself was a change. And her point is like, "Look, all these changes are actually making policy choices for Congress."

0:28:23.1 Rhiannon: That's right.

0:28:23.7 Michael: Where Congress has not changed things. It accepted Bivens and has legislated in light of that. And then you're going through and changing Bivens wholesale. And that's changing the statutory scheme.

0:28:36.0 Peter: Right. You're just intentionally pulling the rug out, right?

0:28:39.1 Rhiannon: Exactly.

0:28:39.2 Michael: Yeah. Exactly.

0:28:39.7 Peter: Like 50 years ago, the court says, "Hey, you can sue federal officials for damages." So then the Congress, they're not gonna pass a law saying you can sue federal officials for damages. The court has already held that you can, right?

0:28:51.2 Michael: Right.

0:28:51.3 Rhiannon: Exactly.

0:28:51.5 Peter: And then 50 years later, Thomas is like, "Well, if Congress hasn't passed a law, then we certainly can't do it."

0:28:56.4 Rhiannon: Congress should have done it. Yeah.

0:28:58.6 Michael: Right.

0:29:00.1 Rhiannon: Right.

0:29:00.5 Michael: "What the fuck are you talking about?" Yeah. So I think she does a good job of very patiently laying out all the ways they've been changing Bivens and narrowing it and narrowing it, to make this point have force. But I don't think it's forceful enough, and shouldn't have to get to literally the second to last paragraph or the last paragraph to get this. I think this is the lead point, which is that this is legislating. They're in the name of judicial modesty. What they're doing is very much judicial activism, changing the status quo in a very serious way. And as we discussed earlier, in a very fucked up way. Because that means pretty much almost all of our listeners are subject to the whims of a bunch of fascist pricks in Border Patrol.

0:29:52.8 Rhiannon: Yeah, I think something this case really highlights is something that we talk about a lot, which is that rights without remedies are not really rights. We brought this up in a bunch of contexts. But the point is that if you have a right protected by the constitution, take the Fourth Amendment, take the First Amendment, if there's no remedy for that right being violated, then that right doesn't really exist. Actually, there is a really good quote from Bivens, where Justice William Brennan wrote, "Power does not disappear like a magic gift when it is wrongfully used." He goes on and says that a federal officer who acts illegally "in the name of The United States, possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own." So it's a recognition in Bivens, that if people don't have a remedy, if people don't have a way to get damages, if people don't have a way to get into court and vindicate their rights when a federal officer violates their rights, then your right doesn't mean anything, right?

0:30:58.9 Michael: Yeah.

0:31:00.4 Rhiannon: And I think pivoting back to this case, a really good example of how Thomas is just brushing this off, kind of brushing it under the rug, is that Thomas says that like, "Okay, yeah, yeah, yeah. You don't have a Bivens claim where... You can't sue this federal officer for damages. But you can still file a complaint. You can still get your grievance in. Just at that agency, just call up his superior and let him know that you... "

0:31:27.6 Michael: You can literally complain to a manager.

0:31:29.9 Rhiannon: Right.

0:31:31.1 Peter: You're still allowed to write a Facebook post about it, if you want.

0:31:33.1 Michael: Yeah, yeah.

0:31:33.8 Rhiannon: And it's like, "No, actually, I can't. Because when I do that, I'm retaliated against by the federal government."

0:31:44.1 Peter: Yeah, but you can then complain about that, Rhi. It's a series of never-ending complaints.

0:31:49.1 Rhiannon: It's literally the case. Like, "I did file a complaint, sir. And you're not doing shit about it."

0:32:00.9 Peter: Oh, God.

0:32:01.4 Michael: Oh, God.

0:32:02.7 Rhiannon: It's ridiculous. And so, yeah, it just serves to underscore, that you... Thomas is saying... The Supreme Court says, "You have these constitutional rights." Thomas is saying, "Yeah, yeah, yeah. You have these constitutional rights." But if you can do anything about it, if you can't get something back, if you can't hold the government accountable to violating your rights, then that right doesn't mean shit.

0:32:25.7 Michael: Yeah.

0:32:25.8 Peter: Right.

0:32:26.8 Michael: And he says that, by the way. He says, "Look, the relevant question is not whether this would provide for a wrong that would otherwise go un-redressed, nor does it matter that existing remedies do not provide complete relief. Period. It doesn't matter."

0:32:41.6 Rhiannon: Right, right.

0:32:42.6 Peter: Well, in that case...

0:32:43.2 Rhiannon: They don't care that there's no remedy here.

0:32:45.0 Michael: Your constitutional rights are violated. Eat shit. Too bad. Doesn't matter.

0:32:49.5 Rhiannon: You got no remedy. Sorry.

0:32:51.3 Michael: Literally, it does not matter.

0:32:53.7 Peter: So underlying this debate is the idea that the Supreme Court is not well-positioned to create remedies for constitutional violations. That's the realm of Congress. But first off, is it? 'Cause the Constitution is supposed to be a constraint on the power of government to impede on your rights. What good is that if Congress can pick and choose which rights it wants to protect? What's the point of the Constitution then? Conservatives who oppose this stuff will say, "Oh, it's about separation of powers. Courts shouldn't be creating remedies. That's Congress's job." But I'm not sure that argument makes much sense when we're talking about the Constitution, which is intended to restrain the government, Congress included. Why are we reliant on Congress to validate our constitutional rights? I thought the whole point of the Constitution was that they can't fuck with those rights. And on top of that, the Conservatives want you to believe that the idea of the court creating remedies for constitutional violations is like this really unusual and novel thing that should rarely happen, that it's like some form of judicial overreach, right?

0:34:04.2 Rhiannon: Yeah, yeah.

0:34:05.0 Peter: But it's actually extremely common. And basically, the backbone of our constitutional system is the ability of federal courts to issue injunctions, despite in many cases, there being no specific Congressional authorization. Brown v. Board involved the supreme court issuing an injunction to halt school segregation without authorization. That was not a Section 1983 case. That was predicated on court-made remedies. Many injunctions to enforce First Amendment rights, just for example, are issued without specific authorization from Congress. There are some statutes like the Administrative Protection Act, just as an example, that allow for injunctions explicitly. But it's really just sort of a light patch work. And it has... And the fact that there aren't statutes authorizing the court to enforce all sorts of rights has never stopped them. So the complaint that the court is not suited to create remedies for constitutional violations, it's just not made in good faith. It's something that the Conservatives strategically deploy, and mostly when some Border Patrol goon gets sued for brutalizing someone.

0:35:10.6 Rhiannon: Right, right.

0:35:11.1 Michael: That's right.

0:35:12.4 Rhiannon: And you know what else really bothers me about this case, is how all of this combines with qualified immunity and a system of protecting police officers that makes holding police of any type, whether state or federal agents, it makes holding them accountable nearly impossible. So it's been a while since we talked about qualified immunity. I think we had an episode about qualified immunity, literally like two years ago. But that's the mechanism by which police are often granted immunity from lawsuits when they violate people's rights. And the idea behind qualified immunity, the good faith reading of qualified immunity is that police shouldn't be at perpetual risk of lawsuits for violating someone's rights if they didn't know what they were doing is unconstitutional. But since the 1980s, just like with Bivens, the Supreme Court has taken this idea and made it harder and harder and harder to sue cops at all.

0:36:09.2 Rhiannon: So basically, they've restricted the circumstances under which you can actually sue cops. And they've granted qualified immunity in so many situations that it's become like this impenetrable shield for police. And so I say all that, qualified immunity isn't at issue here in this case. Because qualified immunity applies to state actors. And this is federal law enforcement. But we just wanna highlight this trend, that's completely judicially made doctrine. It shields police from accountability, the vast majority of the time. So you have Bivens claims, that the court is shutting down for federal actors. You have qualified immunity being used to protect state actors. This is what is meant when people say we live in a police state, right?

0:36:54.7 Michael: Right, yes.

0:36:54.9 Rhiannon: A legal framework that protects police no matter the violation, no matter what they do, and at every level, federal, state, local. It doesn't matter. The Justices at the Supreme Court are fashioning and using their own form of judicial activism to build these frameworks that protect police.

0:37:14.6 Michael: The big bull works against a police state or, yeah, the ability to hold cops accountable.

0:37:20.9 Rhiannon: That's right.

0:37:21.0 Michael: And make sure they are subject to the law, and also civilian control of the police forces. And ask yourself if you really think all your civilian governments, you little city and state governments, have much to say at all about how police departments are run these days.

0:37:36.5 Peter: Right.

0:37:37.1 Rhiannon: Right.

0:37:37.8 Peter: And it's worth noting another dichotomy, qualified immunity is a judge-made doctrine, right?

0:37:44.7 Rhiannon: That's right.

0:37:44.8 Peter: It doesn't stem from a statute. It's something the courts made up. So the courts are allowed to make up ways to impede your lawsuits. But they can't make up ways to allow you to sue. One of the many, many ways in which Conservatives have absolutely no real principle here.

0:38:02.7 Rhiannon: Yeah, yeah. And talk from both sides of the mouth, right?

0:38:05.3 Michael: Yeah.

0:38:05.4 Peter: Yeah.

0:38:06.4 Michael: Yeah. And so with the Fourth Amendment in particular, it's important to note that all there are, are like judicial, like judge-made remedies. There are basically like four ways to vindicate your Fourth Amendment rights. One of them, as we've discussed, is declaratory and injunctive relief, which is kind of a joke when it comes to things like excessive force. A court will say, "Yeah, that was excessive force. Well, who fucking cares?"

0:38:37.1 Peter: And that's it.

0:38:38.0 Michael: That's it, right? Like that's nothing. One of them is what's known as the exclusionary rule, which says that, at least in some cases, not all cases, evidence that was collected in violation of the Fourth Amendment cannot be used against you in a court of law. But again, if it's just a Border Patrol asshole punching you in the stomach and leaving you on the ground, spitting blood or whatever, so what?

[laughter]

0:39:06.1 Rhiannon: Right. The exclusionary rule doesn't help you. Yeah.

0:39:09.1 Michael: "Oh, if he collects my DNA there, he can't use it in court against me."

[laughter]

0:39:13.1 Rhiannon: Right, right.

0:39:15.8 Peter: This is a great example of a case where, yeah, the exclusionary rule doesn't apply because the cop didn't use him to get evidence. The cop just beat the shit out of him. That's it.

0:39:24.1 Rhiannon: Right, exactly.

0:39:24.8 Michael: He just brutalized someone and moved on with his day.

0:39:26.9 Rhiannon: Yeah.

0:39:27.8 Michael: A third way that... I did not know about this. States in a lot of cities, they're protected by sovereign immunity. And you can't sue them. But you can sue municipalities. I didn't know this. I guess because there's something more coherent about their structure. So you can sue in the rare instance where you are brutalized by someone who is acting as an agent of a municipality. You can sue their municipality. So that's...

0:39:56.1 Peter: Although the municipalities win most of those cases by claiming that the officer was acting outside of their authority, almost inherently.

0:40:03.4 Michael: Right.

0:40:03.8 Peter: Yeah.

0:40:04.3 Michael: Then it has to be pursuant to their authority as an agent of the municipality. So yeah, good luck with that. And then the fourth and final way... These are judge-made. The fourth and final way, also judicial remedy for vindicating your Fourth Amendment rights is money damages to which the Supreme Court is closing off. And that's it. So there's nothing left. That's it. Literally, there's no recourse. It's angry blog posts. It's adding CBP on Twitter.

0:40:37.9 Peter: Yeah. If you let this court run for another decade, the act of a police officer using excessive force on you would be functionally legal, right?

0:40:49.3 Michael: Yes.

0:40:49.7 Rhiannon: Yeah, yeah, yeah. And I think the point you're getting to, Michael, is just that the Fourth Amendment will nearly be dead letter law, if not for judge-made remedies that are actually held up in court, that are actually delivered, right?

0:41:07.1 Michael: Right. It's only force comes from judge-made remedies.

0:41:10.1 Rhiannon: That's right, yes.

0:41:10.9 Peter: Yeah.

0:41:11.0 Michael: Yeah. I also think it's important to remind ourselves of the context that this is happening, and the author of this opinion. We were joking about it before, that he is the most MAGA of the Justices. He's the biggest fascist of the justices. One of Trump's big appeals and an animating sort of principle in the Conservative movement right now is immigration, building the wall, being harsh on immigrants, not just illegal immigrants, legal immigrants, not just undocumented immigrants, legal immigration. And part of that is creating a sort of a force where you can take the gloves off. This is very much in line with that ideology. The CBP has 20,000 agents. We're talking about 20,000 agents whose jurisdiction covers 200 million Americans, in a time when there's sort of a rising fascist movement that is very much looking for scapegoats, whether it's Hispanic people or trans people or whatever. And if it isn't obvious enough already, the idea that it will stop at one group and that'll be the end of it, like the defendant's name in this is Boule. That's not a fucking Latino name. This is... Everybody's rights are at stake.

0:42:38.0 Peter: Yeah.

0:42:38.1 Rhiannon: Exactly.

0:42:38.7 Michael: None of our rights are protected.

0:42:40.2 Peter: Throughout the Conservatives' opinions about this, there's this implication that the court creating a remedy for damages against Border Patrol agents would be judicial overreach of some kind. And the big problem with that is like there's no neutral course here. You either devise a remedy for these situations or you allow constitutional rights to be trampled without consequence. Those are the only two options in front of you. There's no middle ground. But the Conservatives don't view it like that. Because to them, leaving a constitutional violation unaddressed is not inherently a problem. Like Thomas said it explicitly in that quote you read, Michael, where it's just like, "Yeah, sometimes it's not a remedy." They are okay with leaving your rights to a series of unrelenting technicalities. And this case is just like a trolley problem where on one side of the tracks is your constitutional rights. And on the other, there's nothing. And the trolley is headed towards your constitutional rights. And the Supreme Court is saying they won't do anything about it because they don't think it's their job to pull the lever.

0:43:45.1 Rhiannon: Right.

0:43:45.6 Michael: Right. Yeah.

0:43:46.8 Peter: That's the whole case.

0:43:47.4 Michael: Yeah.

0:43:48.4 Rhiannon: Exactly.

[laughter]

0:43:54.8 Peter: These fucking... These fucking pigs, Jesus.

[music]

0:44:06.6 Peter: Next week, Shinn v. Ramirez, a case about whether courts have to hear exculpatory evidence, evidence that you didn't do the crime. And the answer is no, they don't, in fact.

0:44:19.8 Michael: In order to put you to death.

0:44:22.6 Peter: The answer is always the worst thing here on 5-4.

0:44:25.3 Rhiannon: That's right. That's what you come for. You come back week after week.

0:44:29.3 Peter: The whole show, baby. [laughter] Alright, follow us on Twitter @fivefourpod. Subscribe to our Patreon, patreon.com/fivefourpod, all spelled out, for just $5 a month. Premium episodes. Ad free episodes, I should add. We have a $10 tier, if you wanna get the extra benefits like events and access to our Slack, all sorts of good shit. We're planning a couple of Zoom events right now. They're gonna be good. And I imagine that we will have a bunch of premium content in the month to come, given what we all know it'll look like.

0:45:10.1 Rhiannon: That's right.

0:45:10.7 Peter: See you next week.

0:45:11.3 Michael: Bye-bye.

0:45:12.0 Rhiannon: Bye.

0:45:13.1 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Lena Richards and Rachel Ward. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin. And our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY. And our theme song is by Spatial Relations.

0:45:44.5 Peter: Alright, well, next week...

[laughter]

0:45:46.2 Rhiannon: What are we doing next week?

0:45:49.5 Peter: It almost seems not worth saying what we're doing next week. Because there's no way we survive a week without an emergency episode.

0:45:57.8 Michael: Yeah.