We're starting to get the first SCOTUS decisions of the Roberts Court shaped by Trump's pick of Justice Kavanaugh, and they are 5-4 decisions with the linchpin being Chief Justice Roberts himself. Roberts is still far more conservative than Justice Kennedy was when Kennedy was the deciding vote though, so expect a lot more 5-4 precedents like this.
Hernández v. Mesa is a case about a horrific event.
Sergio Adrián Hernández Güereca, a 15-year-old Mexican boy, was with his friends near the US-Mexican border when one of those friends was detained by US Border Patrol agent Jesus Mesa. Hernández ran onto Mexican soil, and Mesa fired two shots at the boy — one of which struck him in the face and killed him.
Hernández and his family disagree about the events that led up to this shooting. The family says that Hernández and his friends were simply playing a game where they would run to the fence that separates the United States from Mexico, touch it, then run back to their own country’s soil. Mesa claims that Hernández and his friends threw rocks at him. (Significantly, the Justice Department has refused to take any action against Mesa.)
Regardless of who is telling the truth, the question in the Hernández case is whether Mesa is immune from a federal lawsuit even if he shot and killed Hernández in cold blood. The Supreme Court held, in a 5-4 decision along familiar partisan lines, that Mesa cannot be sued.
The case turns upon whether the Supreme Court’s decision in Bivens v. Six Unknown Named Agents (1971), which permitted federal lawsuits against law enforcement officers who violate the Constitution, has any real force in 2020. After Justice Samuel Alito’s opinion in Hernández, the answer to this question is a resounding “no.”
Alito’s opinion does not explicitly overrule Bivens, but it appears to be laying the groundwork for a future opinion that will eliminate Bivens’ protections against federal officers who violate the Constitution. Notably, Justice Clarence Thomas wrote a separate opinion in which he argues that “the time has come to consider discarding the Bivens doctrine altogether.”
In the era of Black Lives Matter and police reform, the Hernandez decision by Justice Alito is a stake through the heart of federal law enforcement accountability.
“For almost 40 years,” Alito writes in Hernández, “we have consistently rebuffed requests to add to the claims allowed under Bivens.” When faced with a Bivens claim, the Court typically looks for reasons why the most recent case is “different in a meaningful way from previous Bivens cases decided by this Court.” If it is, the Court will dismiss the lawsuit if there are any “special factors counselling hesitation.”
Much of Alito’s opinion is a laundry list of reasons why the courts should hesitate to allow suits against border patrol agents involved in a cross-border shooting.
“The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns,” Alito claims, and “a cross-border shooting is by definition an international incident.” Thus, it is better for these incidents to be resolved through international diplomacy, rather than through a lawsuit.
Similarly, “the conduct of agents positioned at the border has a clear and strong connection to national security.” These agents “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States.” Allowing suits against these agents risks “undermining border security.”
Alito’s opinion, in other words, rests on a kind of anti-Spider-Man rule. Border patrol agents are given great power so that they can use that power. And it is not typically the job of the courts to interfere with how those guards exercise such power — even when it results in the death of a child.
As I've said countless times, even if Donald Trump left office tomorrow, I'll be spending the rest of my lifetime dealing with the damage he's caused in the judicial alone.
Expect a lot more depressing decisions in the months and years ahead.