The Supreme Court's New Rulings

you're gonna help me understand the Supreme Court. Well that's a let me be a little more specific about why we're chatting today on for the internet sake. Um. The Supreme Court last week issued a ruling, and there may have been another ruling by the time you hear this, but this specific ruling was about a case that had

to do with what's called a bivens action. Um. If you have seen people talking about this Supreme Court ruling online, it has probably been with them sharing an image of the United States that shows the hundred mile zone where border patrol is able to operate, um, and being like now, because of this ruling, border patrol can come into your

house with impunity and do whatever they want to you. Um. There's been a lot of like stuff said about this ruling, and as is often the case when people are get really up in arms about the niche aspects of a court ruling, they're not entirely correct about what the ruling does. Um. The hundred mile zone is absolutely a real thing, and the Feds can do all sorts of funked up shipped

to you in your house. But that is, UM, let's talk about this, yeah, UM sure, So I think the first place to start is people are always asking me when can the Feds kick in my door? My girlfriend always says when it's closed? But I say is whenever they want to, uh what might change from case to cases,

they rationalize it in court later. Um. And so this is this is really a case that further reinforces the fact that for many, many years, UM, federal agents, in particular border control have been able, have had a lot of power to conduct searches if they rationalize those search is with respect to immigration or in this case the even more hype term national security. So um, this is

not new. The federal statute outlining the powers and duties of border officers was past I think in ninety two, and I believe always said that border agents can conduct searches within quote a reasonable distance of the border. I think case law has determined that that reasonable distance is a hundred miles. We're not really looking at anything particularly

new here. Um. So that one of the things about this hundred miles, as people keep saying, oh, the Fourth Amendment doesn't exist within a hundred miles of the border, Um, it does. This is not considered to be be a violation with the Fourth Amendment because a search within a reasonable distance of the border is considered a reasonable search. Right. The Fourth Amendment protects you from usable searching, and this

is statutorily considered a reasonable search. Right. So I feel like a lot of the media around this particular case is kind of an exercise and extreme point missing. It's both an overreaction to some things that are outrageous but are in no way new. Yeah. Um, everyone's sharing these maps, like you said, um, And again it's one of those things where it's like we're not saying there's not a lot of that this is not a problem that there are problems with the there's that the hundred mile zone

isn't a problem the border patrol. There's not a lot of messed up stuff that they do. It's it's the idea that like this ruling came out and suddenly there's no more Fourth Amendment, right like, which is how some people have interpreted it. Because the Internet is a machine that devours context, that's right, social media, I should say, yeah, sure. So So this case is is called Egbert v. Bull, which I just think it's a marvelous case name. And

these are all incredible. The original Bivens case is Bivens versus six unknown named agents, which I also elect a lot six unknown narcotics agents. Yeah, I mean there's a lot of sort of wonderful case names. Um my favorite, of course is alien B Predator. Um. Yeah, you see what I did there, I did, I did. I just showed Garrison aliens last weekend, so I was, oh, for the first time, Yes, marvelous. Uh So, I don't know.

I think what's happening here is that even among people who kind of have a sense of history or an analysis, there's maybe this lingering belief that the legal system is supposed to protect us, or that maybe at some time it did protect us, and it just like persists like a vestigial tale of of like hope, Yeah, but I kind of love this case. I could read this case

and um, at least as Clarence Thomas describes him. The plaintiff in this case whose bool is basically the viewpoint character from a Steely Dan song like he like appears to have sort of spring fully for him from the head of Donald Fagan, and he drove off with his vanity plate that says smuggler. Honestly, I'm sure you're gonna tell me it was something problematic, but sounds like a cool dude to me. He spent years playing both sides

of this game. He would get paid by people to smuggle them across the Canadian border, and he'd make them, he'd like extort money from them. He'd make them buy a room at his hotel, even if they weren't going to stay at his hotel, and then he'd charge them money for every hour that he spent driving to pick them up and take them across to Canada. And then he would turn around and get paid by the Feds to snitch on the people who had just paid him

to smuggle them across the border. Chez Yeah all right, Now I don't think this guy is cool. Yeah, So he basically ends up getting in an altercation with a federal agent and he's back to being cool, okay. And then when he makes an administrative complaint to the agency, the agent six the i R S on him. This is, I mean, all right, not good behavior, right right. But now, after years of doing dirty work for the Feds, Buol is outraged because he never thought tigers would eat his face.

So he suites the agent under Bivens, which is a case that sort of a little bit maybe some times gives individuals a very narrowly tenuous, circumscribed opportunity to sue federal agents for certain civil rights violations. And um, it's not a very strong right and it has been getting ever more eviscerated since um. And really, what Bivens does is it gives you, uh, you know, in the very unlikely event that you win a Bivins claim, it gives you money damages. It doesn't give you better a law.

It doesn't give you better police practices, it doesn't make you safer. It's not nothing, but it's not like it's it's money. Excusally, what the law can give you right. So, unless you're harboring the delusion that there is a sort of direct connection between being allowed to try, usually unsuccessfully, to recover money from the real government and the self control or good behavior of federal agents, Bivins is not actually a particularly useful mechanism for pursuing anything that resembles

like a well developed vision of justice. Right, It's not nothing. I don't I don't want to dismiss the utility of Bivins, but it's you know, it's not like it's not a strong right, it's not a reliable right, you know, to sue. Um, it's not very effective. One of my beloved colleagues, uh described it. He said, Bibbins is such a bad doctrine

that it's taking other doctrines down with it. Right. It's just it's, um, it's just such a weak case at this point that it trying to trying to use it and trying invoke it can actually end up just being counterproductive, as it is in this case. Right. Yeah, we have a very unsympathetic plaintiff and we have a really weak doctrine.

So he sues under Bivens. It goes up and down the cords, It winds up in the Supreme Court, which issues a sort of a bunch of sort of fragmented opinions, but ultimately all the justices mostly agree this is not a super controversial um question, at least within the context of the court itself. Yeah. So the first thing is they all say, you don't there's no right to sue for money damages under the theory of First Amendment retaliation, meaning, um wool had sued the agent for basically for punishing

him for making a complaint. He's saying, I exercise my First Amenment right to make a complaint to the agency you work for, and then you punished me by sicking the I R S on me. Right, I see why that's questionable in the actual like legal documentation. Yeah, so, um, you know, the justice to say no, that that's not a right that exists. And then they have some different thoughts on whether or not you can sue for excessive force. Um. But ultimately, the big decision that is made here isn't

about the border. It's not about the relative impunity of border patrol, which has long operated with relative impunity, just like the rest of the federal government. Yes, I remember that impunity when they were firing tear gas at us. Yeah, you know, Uh, they decide you can't sue them. Um, which if you, if you ever could have sued them, I guess in a successful or effective way, And if suing them had ever had a meaningful impact on their behavior,

I guess its opinion would be a real loss. But all this opinion really does, as far as I can tell, and I've spoken with my colleagues and we all agreed that the sort of uproar or this particular case is a little baffling because all it really does is further remove what was already a really inaccessible and pretty weak remedy.

And yeah, well you know, and then everyone lost their minds and started sharing the a c L s a c L used map of the what a hundred miles of border looks like and getting really mad on Twitter. Yeah and again the hundred mile borders own. I think it's fair to say that like, that's a problem. I don't like that's that's a bad way for things to work. The border patrol, as we talked about in our two part are on the border patrol, has a lot of

massive issues with it. But um, I feel like kind of what's happening here is some of this is like a little bit of collective PTSD because of the shock of the imminent kind of demise of Row. And so I think maybe there's this kind of expectation that every ruling issued by the Supreme Court because Funckett is going to be UM this kind of like earth shattering like end of a fundamental right. And in this case it's really just like, no, this is more or less like

this is not a massive ce change. Yeah. I like to say about this kind of thing. It's appalling, but it's not surprising. I do want to note, just for your listeners, this case does not in any way touch our right to sue state level police UM, because there is federal legislation called sec that gives us permission to sue the police and UM. For some strange reason, the federal government has not passed similar legislation allowing us to

sue them. That's really surprising. I wonder why. I so in any case, one of the things the Court says in the Bool opinion is that if the Feds wanted to be constrained by the citizen re Congress would have

given us the right to constrain them. So so I think this particular case that people have been going out about is a great sort of example of the way that, um, the sort of the zeitgeist moves inexplicably to make much of things that are maybe not all that much and while also kind of failing to notice things that are really significant. And so I'd like to sort of highlight some of those things. Um. I think there actually are real reasons to breathe and prepare and gather our courage, um,

based on what the Supreme Court has done this term. Uh, And I love to talk to you about some of those things. So I do think there are real reasons like that degree and prepare and some months always without getting too in the weed, UM, I guess I want to talk both about the shadows DoPT it? Which shadow doopt it is A is a kind of a more recently point term UM. What it means. What it's referring to are the hats that are often heard, well, they're

not heard. They're did by the Supreme Court on the basis of the record below, often without oral argument, and they're often issued as holding decisions without written opinions, so they're often not justified or rationalized or you know, the reasoning for the decisions that are made is often not

made transparent to the public. Okay. Yeah. Times these are cases that are sort of highly procedural or there not super complicated questions, or there's questions of law where there's maybe a circuit what um, and they just need to resolve you know what might otherwise be repugnant views of the law. Yea. And the Shudo docet has resently include a jet penaltycation. Yeah, be decided something of such grades imports with decision that are not explained by an opinion

where the justice is not makes clear the reasoning. Um. This is I mean, in my opinion, mh problematic um. And it's you know, to the amount of power that can be exercised by the superin court. To me, I think requires a really intense degree of transparency. If you're I think that like the amount of transparency that is it's incumbent upon you to have is sort of inversely proportionate to the amount of power you exercise. Yeah, that

makes sense, um. And so the Supreme Court has just i mean literally life with death power here and so for them to be making decisions on the shadow dott about death penalty cases and death penalty juristic. Um is just wild. Um, It's troubling, it's frightening. You know, I think I can't remember if I talked to you before about how about the injuries? Yeah, maybe the show about it, but I certainly talked to you about it. We might need to do it. It's probably a good idea at

some point to do a show about it. But yeah, Um, one of the things that makes banjuries so anomalous is that they aren't public, right, and that to me, like this is a mathema. Well not to me, it is in terms of the sort of um received wisdom about the American legal system. To have secret proceedings is a mathema who you underlying principles of due process which you know,

which involves uh, well noticed and adherent. But really there's um a commitment to uplistic right in the American maget system that is undermined and trampled upon by federal ransus. And that there is a similar thing happening here with the shadow docket. We know at least what the cases are, we know what the opinions are, what the holdings end up being. Um. But to have these kinds of cases being decided without oral argument. To have these cases being

decided um without written opinion is troubling. So that's a move toward an exercise of power that I need characterI is a politation and that I find days concerning UM.

One of the things that we're seeing, and I think it's sort of not unrelated to that, is that they're they seem to be dispensing what the docten is very decisive, which is precedent, right that the idea that previously decided cases are binding, and you know, if you overturn one, you really have should be very clear that that's what

you're doing, and you have to explain why. And we see that with the leak road graphs where they they have you know, if indeed they issue it sure because and this is like an originalism thing, right, Like you can throw out precedent if you're saying all that matters is this interpretation you're saying that's based on the original intent of like some dead dudes. Is that more or less an accurate way to say it? Or you can overturn president um, you know, over turned president we would

have that's I think the just outcome or whatever is UM. Yeah, but I think there's many reasons that you can overturn precedent UM, but they seem to be doing it for subsilentio. Right. They're not. They're not always. The leak road rap did where a pretty clear and kind of parents about it. But I think there are some other things that are going on. UM. There was a sixth Amendment case where UM they just just start up, didn't mention all of

the countervailing presidents. Yeah, you know they there's some stuff happening. There is UM a case in Texas there was a fishermendent case work the courts, the Supreme Court sent it back down to UM, either the distance or the Court of Appeals, I don't I don't remember UM or even the district or the circuit UH, and said, look at the side is on death row did absolutely with the ineffective assistance of council. Where is the a prejudice? And the Texas Court just ignored them. Yeah, and that's one

of those ones that people freaked out about. That was like, yeah, I think folks should be very unsettled by this, right. And then the court was like, m they didn't. The court, the Supreme Court just didn't. They just let them get

away with it. Um. And so there's just sort of weird um cushion full happening not only between this court interpreting the last court opinions and deciding basically not to enforce them, but but there's an interesting power struggle where this opinion court seems to be strategically feeding power to

certain uh, certain lower courts in a way that unusual. Yeah, you know, so you know they're not they're not being transparent, they are not following precedence, they are not um enforcing the hierarchy of the courts, which it does sound like an odd thing I can put need to complain about, um.

But one of one of the things that we want to know is that, you know, one of the ways that we can anticipate what the law is or make reliable legal arguments is that the law has to be consistent, you know, the law and the lower course that's to be consistent with what the Supreme Court has said. And if we can no longer rely on that, um, it's um you know, chaotic, potentially really bad, but really better Our clients, apparently, particularly clients who are facing the death penalty,

which is a particular concerns UM. This court does seem pretty intent. I'm knocking over the entire existent amendment UM. And then I think yesterday or the day before, they issued a really important immigration case on the class actions that were brought UM by around behalf of people who were detained in immigration detention for like months and months and months without hearing, without bond hearing. And essentially what the court held was UM that lower courts join'e have

any authority to UM. Lower coach do so many authorities to UM demand that the federal government do or not do certain things because they're they're playing as as the Immigration Naturalization Act does not give them that authority UM.

And so it's there. There's a lot. I think the big trend here is there's a lot of protecting the federal government from any kind of accountability UM accountability that's being imposed by lower federal court who are so concerned with states rights they have a way of showing it.

I don't know what else to say about it, because it is one of those things where when we talk about, or when I talk about like frustration at people kind of sharing information about stuff the court is doing, or about changes to how our rights are being interpreted by courts that are incorrect. It's not because like there's not a problem. It's because it's really important to be aware of like the it's really important to like see the problem accurately, um, and to see it like it's this

it's this broad assault. Like like you said, the fact that the fact that you have this kind of high level attack on the Fifth Amendment is really frightening because that's one of like theoretically our primary protections. Yeah, there's also think it's going to be a mirandic case. Okay, oh boy, I'm not looking forward to that. A little

bit anxious about that. Um. Yeah, I don't know. I mean I think that the general thing, so you know, I think the thing that I would like to highlight your paying attention to what writes just the Freme Court is trampling on. It's obviously pretty important, but it's pretty likely to be kind of more of the same, particularly for quality targeted groups of people. I like the law is in certain respects fictional, right, like the lies an

abstract concept. Sure, absolutely, yes, it's material impact. It's not like I don't want to get all post modern here. It's not like a lot of fictional things have have real impacts, Um, exactly, Like, Uh, it has real impact obviously, But I think that the impact of the import ruling, you know, it's very serious, it's very important. Um, but

it's also sort of immediately transformed the world. I think it just sort of changes what kinds of solutions we look to, right, And like, I'm not particularly inclined to look to the court to protect me or anyone, um, and not particularly I don't trust the law or courts enough to really want them to be the arbiters of

things like free speege or Yeah, absolutely not. I mean, obviously I want very ecounful but um, you know, my hope is that we can take carib ease whether or not to make the course irrelevant, will realize doide type dream? But um, I guess this thing, you know, especially with roads and I was I was talking to Margaret, a mutual friend, about this. The thing that's going to change

if we're always overturned. Uh, it's really going to be what delusions are available to us and how much courage will it take to pursue them and what are the potential consequencely, right, Yeah, what kind of resources it do we need? Um. I think in the space of these Supreme Court decisions, some of which are genuinely terrible, UM, and some of which are just reinforcing things that have

longed been the two. Yeah, you know, our grief and our outraged and are bitter popes are not practiced, um, they are not necessarily useful, right and and even getting super in the leaves of you know, what does this opinion actually say. I mean, I think that's an interesting but it's and it's good to know and to at least have somebody around you know. Um. But instead of spending so much time focusing on the real knitpicky language was being used by the unelected god pay us of

the United States. Yes, maybe we start thinking a little bit more about what are the material impacts that might have and what are ways, what are tools that maybe a legal tools or at least that are only legal tools, um, that might be useful in um picturing the things that we value. And I think that's both an important note and a good one to end on. Moira, UM, I will run one thing by you real quick. So I have a plan and I want to I want your

advice in the constitutionality of this. I would like to acquire Fort Brag. So I'm thinking what I do is I go in a Third Amendment case right and say that, well, I mean, if look, you can't what if we just extended the Quartering Act right like in the you know, could we could we push it even further so that nobody can host soldiers? And then I'll those military bases are gonna be there's gonna be a fire sale. You can't keep soldiers on them, Government's not going to keep

running them. And then I get to own Ford Bragg. How are we doing? Is that? Is that legal? It's the whole end people, that you own Fort Bragg, that is one of the end goals. I think you should probably context that racing, Okay, okay, because yeah, you're right, they're probably gonna outbid me anyway, Okay, But constitutionally, I'm on solid grounds with the third Right, that's bulletproof. You know.

Like like many of the questions you asked me, the legal questions you ask me, I think the answers nobody knows. Nobody knows. Okay, I'm gonna I'm gonna do with the n R A did with the second but with the Third Amendment, it's going to take a couple of decades, but I feel I feel good about this course of action. Thank you for putting up with me. More you had some stuff you wanted to plug at the end of this episode, here you I would like to use the repro Legal Defense Fund of if when how because if

we're going to talk about Row at all, the oh boy? Yeah, Well the fund fund, which can be found at retro Legal Defense Fund dot org. They have a donate stage. They're doing amazing work. I'm um, just incredibly impressed it down. They are also at recro Legal Defense Funds on Instagram and probably also on Twitter. Um, but I don't really understand Twitter, so I'm not going to swear to it.

That's for the best. We'll check that out dot com retro legal Funds, So please donate to the Reproductive Legal Fund Twitter dot com repro legal Fund. By the time this episode drops, we may have the Row thing. So I know everybody's gearing up, but you know this is definitely uh, it's it's it's good to help out. We all need to be like Poland because we're not going to yank this back on course through just hoping that eventually Supreme Court gets better. Well, we're gonna wish really hard.

It would be nice, It would be nice, but I think organizing is probably a more effective thing to do in the immediate term. Um, so yeah, I thank you Moira, and um that's the episode It Could Happen Here as a production of cool Zone Media. For more podcasts from cool Zone Media, visit our website cool zone media dot com, or check us out on the I Heart Radio app, Apple Podcasts, or wherever you listen to podcasts. You can find sources for It Could Happen Here, updated monthly at

cool zone Media dot com slash sources. Thanks for listening.