We are starting to get opinions of the Court -- tossing in yesterday's per curiam, five came down Monday and Tuesday though as expected for this time of year, most aren't too notable.
Stolen Seat Gorsuch, e.g., wrote an opinion eight pages total (with headnotes and partial pages) dealing with federal courts being involved in "common lawmaking" that addresses a footnote of sorts that might interest a few, but that is about it for now. Also, RBG mostly had the whole Court (Thomas and Alito disagreed along the edges) in interpreting an international custody case with complicated facts but there was agreement on the law. We did have 5-4 split in a death penalty case, but even the liberals suggested it was somewhat close during oral argument.
The most controversial case was a return appearance in a tragic cross border shooting case, the result (there was some hope, but the result is not too surprising) blocking a so-called Bivens civil damages lawsuit. This was a 5-4 affair and RBG had her second dissent (see the death penalty case, the majority there written by the other Trump guy) as she dissented last time (there, Sotomayor/Kagan/Gorsuch was not involved but Gorsuch was not seen as likely to help the family here, his concern for executive power and his power to restrain it going only so far).
When Alito was announced as the author, the result was sort of apparent -- Justice Kennedy wrote the first time around and it was not a great result. The facts should not be lost here. Back in 2010, Jesus Mesa Jr., a United States Border Patrol agent, killed 15 year old Sergio Adrián Hernández Güereca, a Mexican national. In 2012, U.S. found insufficient evidence for criminal charges. Mexico indicted him for murder, but the U.S. refused to extradite. One wonders what would happen if a Mexican border agent killed an American citizen. At least, of a certain type.
The family tried this remedy, arguing that other means of relief were blocked given the rules in place. Note that even if the United States (not fully neutral) was current as to criminal prosecution, a civil remedy would be a lower burden of proof while obtaining at least a means to make one's case in court. The feds provided a brief at the end of the Obama Administration against applying Bivens here. SCOTUS sent it back to apply a recent case limiting Bivens. It came back. And, the family lost again. So, from my reading, the last two Administrations had the same basic position. See also, blocking relief for "state secrets" reasons.
Bivens basically was the tail end of the Supreme Court being open to an expansive use of federal courts to obtain justice with "remember when conservatives like him were there?" Justice Harlan concurring separately support of the remedy. Since then, the remedy was disfavored though the Supreme Court never got rid of it. The basic principle of all wrongs having a remedy perhaps was seen as too well basic for a majority to completely do so. So, on some level, this is a "reasonable" result since the international incident aspect made it allegedly "novel" and thus one would be expanding into new ground. On the other hand, the basic facts are standard and again just giving a family a chance to get relief for the death of their son seems like basic justice.
Ideally, Congress -- maybe with a bit of bipartisan support since hey some other time you can have a conservative/libertarian martyr as a victim -- would statutorily provide relief. But, as with the exclusionary rule and so forth, a vacuum should not allow the courts to wash their hands of the matter. Also, this was a basic value judgment by the justices, the 5-4 split underlining the fact. One or more liberals repeatedly support denying relief of some claimed civil relief but here the facts was particularly damning. The Roberts Courts, when it suits, is all for minimalism and avoiding larger results. This very case had two justices (Thomas/Gorsuch) questioning Bivens totally. A narrow decision the other way was possible.
Maybe, the matter was more principle than a clear realistic shot at relief, especially with the swing justices on this Court and the membership of the Fifth Circuit. Still, it had an appearance of injustice, one that over the years had more than the usual Trump suspects offering an assist. Anyway, had three more opinions (unanimous, basically all short and the odd justice briefly concurring a bit) on Wednesday. Calm before the storm.
Stolen Seat Gorsuch, e.g., wrote an opinion eight pages total (with headnotes and partial pages) dealing with federal courts being involved in "common lawmaking" that addresses a footnote of sorts that might interest a few, but that is about it for now. Also, RBG mostly had the whole Court (Thomas and Alito disagreed along the edges) in interpreting an international custody case with complicated facts but there was agreement on the law. We did have 5-4 split in a death penalty case, but even the liberals suggested it was somewhat close during oral argument.
The most controversial case was a return appearance in a tragic cross border shooting case, the result (there was some hope, but the result is not too surprising) blocking a so-called Bivens civil damages lawsuit. This was a 5-4 affair and RBG had her second dissent (see the death penalty case, the majority there written by the other Trump guy) as she dissented last time (there, Sotomayor/Kagan/Gorsuch was not involved but Gorsuch was not seen as likely to help the family here, his concern for executive power and his power to restrain it going only so far).
When Alito was announced as the author, the result was sort of apparent -- Justice Kennedy wrote the first time around and it was not a great result. The facts should not be lost here. Back in 2010, Jesus Mesa Jr., a United States Border Patrol agent, killed 15 year old Sergio Adrián Hernández Güereca, a Mexican national. In 2012, U.S. found insufficient evidence for criminal charges. Mexico indicted him for murder, but the U.S. refused to extradite. One wonders what would happen if a Mexican border agent killed an American citizen. At least, of a certain type.
The family tried this remedy, arguing that other means of relief were blocked given the rules in place. Note that even if the United States (not fully neutral) was current as to criminal prosecution, a civil remedy would be a lower burden of proof while obtaining at least a means to make one's case in court. The feds provided a brief at the end of the Obama Administration against applying Bivens here. SCOTUS sent it back to apply a recent case limiting Bivens. It came back. And, the family lost again. So, from my reading, the last two Administrations had the same basic position. See also, blocking relief for "state secrets" reasons.
Bivens basically was the tail end of the Supreme Court being open to an expansive use of federal courts to obtain justice with "remember when conservatives like him were there?" Justice Harlan concurring separately support of the remedy. Since then, the remedy was disfavored though the Supreme Court never got rid of it. The basic principle of all wrongs having a remedy perhaps was seen as too well basic for a majority to completely do so. So, on some level, this is a "reasonable" result since the international incident aspect made it allegedly "novel" and thus one would be expanding into new ground. On the other hand, the basic facts are standard and again just giving a family a chance to get relief for the death of their son seems like basic justice.
Ideally, Congress -- maybe with a bit of bipartisan support since hey some other time you can have a conservative/libertarian martyr as a victim -- would statutorily provide relief. But, as with the exclusionary rule and so forth, a vacuum should not allow the courts to wash their hands of the matter. Also, this was a basic value judgment by the justices, the 5-4 split underlining the fact. One or more liberals repeatedly support denying relief of some claimed civil relief but here the facts was particularly damning. The Roberts Courts, when it suits, is all for minimalism and avoiding larger results. This very case had two justices (Thomas/Gorsuch) questioning Bivens totally. A narrow decision the other way was possible.
Maybe, the matter was more principle than a clear realistic shot at relief, especially with the swing justices on this Court and the membership of the Fifth Circuit. Still, it had an appearance of injustice, one that over the years had more than the usual Trump suspects offering an assist. Anyway, had three more opinions (unanimous, basically all short and the odd justice briefly concurring a bit) on Wednesday. Calm before the storm.
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