Joe and Elie discuss the relatively sleepy Supreme Court Term with Goldstein & Russell’s Tejinder Singh. How has Gorsuch changed the Court? How mad can one guy get over a footnote? What’s really happening with that travel ban? We get to the bottom of all these questions.
Above the Law – Thinking Like a Lawyer
Supreme Court Wrap-Up
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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above The Law. With me my, my inestim…
Elie Mystal: Inestimable.
Joe Patrice: Yeah, that’s what I was trying to go for. It’s hot out. I am not…
Elie Mystal: It is so hot that a piece of the Arctic, the Antarctic ice shelf, of the size of Delaware actually split off and is now floating around in the ocean.
Joe Patrice: Wow, I hadn’t heard that before.
Elie Mystal: Yeah. Well, time now for me to wear shorts at the very least.
Joe Patrice: Anyway, that’s Elie Mystal who also is at Above The Law, and we are here in ATL headquarters amid the glowing lights and beeps of a high-tech media operation.
Elie Mystal: Well…
Joe Patrice: We’re going to discuss the Supreme Court, but first, we’re going to talk about Elie being mad, as we do on every show.
Elie Mystal: I’m mad about Rome. So here is the thing. I have been listening to this podcast called The History of Rome. You are the one who actually turned me on to this podcast.
Joe Patrice: I did, yeah.
Elie Mystal: It’s by Mike Duncan. It is fantastic…
Joe Patrice: Yeah.
Elie Mystal: …and it is about the history of Rome. But, let me tell you guys, when I’m listening to it, I don’t think that I’m listening to history, I think I’m listening to the future, okay.
A lot of people have made jokes, I’ve made jokes. Joe, you brought this podcast up to me because I cracked a wise about how I will welcome our new Visigoths overlords in reference to the Trump administration. And you’ve rightly pointed out that we’re not looking at the end of the Roman Empire, we’re looking at the pall of the Roman Republic.
In this particular podcast, this History of Rome podcast, it’s so great at really bringing home some of the late Republican examples that seems so important to our current history.
So Joe, my thing now is that Donald Trump is most like Crassus who was one of the Triumvirate with Pompey and Caesar that eventually brought about the end of the Roman Republic. Here’s my argument. One, the man’s name is Crassus. Donald Trump is what happens when Crassus has a baby with stupid, okay, like that’s obvious, Donald Trump is obviously Crassus, right. But Crassus was this very rich man who was not respected by many of his peers and was constantly, desperately trying to get respect and thought that by getting power he would get respect.
He eventually became part of the triumphant with Pompey and Julius Caesar who we know a lot about, and Crassus died, interestingly enough, tracing his military glory in Syria.
Joe Patrice: Yeah… No, that’s good, that’s good. Yeah, the parallels are interesting, and again, I mean, I recommended that podcast to you. I had listened to it several years ago, it’s very good and it does — I mean having been recorded years ago, it actually is kind of scary, the parts that cover that era, you listen to and go, yeah, that happened since that.
Elie Mystal: Once the institutions are broken they can’t be put back together, and I think that, again, to tie it all together to me with Trump is what we’re seeing with Trump isn’t just that – I mean, I have a high school friend named Alex Bagassi, who kind of stomps around Facebook, getting angry at people who compare Trump to Julius Caesar. That’s an insult to Julius Caesar, and I totally agree with that.
Trump is not basically — he is basically not skilled enough to on his own bring about the end of the American Republic, but he’s certainly able to take large wet dumps on our institutions and once those institutions are covered in crap I don’t see how they come back.
Joe Patrice: No, that’s a very cheery view for today, but again, no, it’s —
Elie Mystal: Let’s speak about an institution that hasn’t been fully drowned in Trump refuse.
Joe Patrice: Ooh, wow.
Elie Mystal: Boom.
Joe Patrice: 10 points for that transition.
Elie Mystal: I thought about on the train.
Joe Patrice: Oh nice, okay. So that’s right. We’re going to talk about the Supreme Court today, which is the institution that theoretically hasn’t been dumped totally upon, and for that as regular listeners of the show might expect, we’re bringing back our go to Supreme Court expert, which is Goldstein & Russell’s partner and SCOTUS blog contributor Tejinder Singh. Welcome back.
Tejinder Singh: Hey guys, it’s good to be with you.
Joe Patrice: So, in preparation for this I went back and listened to our Supreme Court preview show that we recorded back, oh lo so many months ago. It seems like forever ago, and it was interesting how right and wrong we were. I just wanted to say like to go kind of frame this discussion.
Elie Mystal: What’s our scorecard?
Joe Patrice: Our scorecard was pretty good. I mean, we did kind of go all in on what Merrick Garland was going to do at the court, so I mean, that’s probably was a mistake.
But beyond that we kind of focused early on, on the idea that Trinity Lutheran was the most interesting thing that was going to end up happening, but more importantly we all kind of agreed this was going to be a boring Supreme Court season and, Tejinder, you were litigating in it, was it as boring as it looked like from out here?
Tejinder Singh: Yeah, it’s not. It depends on exactly where you’re sitting. In terms of Supreme Court terms this was not a blockbuster term. This wasn’t the type of term where we were waiting for the big decisions to come out on the last day that we’re going to make all the headlines. The court issued 69 opinions, 41 of those cases were decided unanimously, only seven of them were decided with five vote majorities, and the trend toward unanimity and in sort of less controversy is I think a product of the fact that the justices when they had a potential 4-4 tie situation on an 8-Justice Court just didn’t want to take cases that would lock them up that way. And so they steered themselves toward the easy cases and the easy cases tend to be a little less splashy.
Elie Mystal: Definitely the most exciting court news in the last six months has not been happening at the Supreme Court, but it’s been happening in the Ninth Circuit, and to a lesser extent it’s at the Fourth Circuit.
So before we kind of fully dive into the term that was, I think we got to start with the — the kind of, the most famous per curiam decision of the year which is the court probably Roberts, partially lifting the injunction against the Donald Trump executive order Muslim/travel ban.
Tejinder Singh: Yeah.
Elie Mystal: Yeah, so my question is, first of all from a court watcher perspective, do you agree with the kind of consensus wisdom that that opinion was — that decision was mainly written by Roberts more than anybody else?
Tejinder Singh: I don’t know the answer to that. That would not surprise me at all. The Chief Justice has taken it upon himself to write some of the opinions and some of the more momentous sort of politically salient cases, the Obamacare case being a really good example of that. And so, I think that that intuition is as good as any, yeah, for sure.
Elie Mystal: And with that I wonder how much of the hand did Roberts show with his decision there. So I think the key parts of the lifting of the ban was to really make this distinction between people with so-called bona fide connections with the United States, just in case you were wondering, those people are the injunction against the travel ban still applies to people with bona fide connections. Lifting the ban against the travel ban, so like allowing the travel ban to be prosecuted against people with no bona fide connections, the court not making a distinction as between what a bona fide connection is and what one isn’t, kind of leaving it to eventually the State Department to do that, and telling the lawyers specifically to be ready to argue the issue of mootness when it comes up in October.
So kind of with that as an overview what are we thinking for October now? Do we think that mootness could really be the way to get rid of this ban or do we think that we’re going to reach the merits?
Tejinder Singh: I think there’s a very high probability that this case goes away and I think that that’s for a couple of reasons. The first is that the travel ban was always intended to be an interim measure. The point of the Executive Order was to freeze the border while the Executive Branch figured out policies that would make sense to allow people from the listed countries in, and originally the government was saying things along the lines that we need 90 days or so and for some parts of it 20 days to figure this out. They have now had well in excess of a hundred days to figure it out.
So there will be a real question, come October, what are you doing over there? Why do you still need these policies in place? Are these policies actually still intended to be doing any work by their own terms?
And so, it may well be the case that action will happen inside the Executive Branch that would make the case go away, and then there are other reasons the case could become moot as well. The things could happen for the various challengers, their loved ones could get visas and so on, because right now all of the challengers in the case they have folks, I believe, whose relatives do have bona fide connections. Now that may not be true for states like Hawaii and so we will have to see exactly how that all shakes out, but there’s a decent chance that it could go that way.
And so, yeah, my suspicion is that the court was sending the signal like, you really don’t want to bring this up here, guys, and giving them a bit of a warning and seeing what they do.
Elie Mystal: The Trump administration of course is so good at reading those subtle norms that the rest of society tries to impress upon them. Let’s go Trinity.
Joe Patrice: Yeah, Trinity Lutheran we in our preview kind of thought that was a very interesting case given that it was one of those cases that had been kicked over, it was one of those things where it seemed by the way in which it had come up, we discussed in the fall.
By the way it had come up it seemed as though this was a case that everyone knew was going to be a 4-4 once Scalia was gone and that they didn’t necessarily want to deal with and make a 4-4 but then it ended up being on this session and they came to a conclusion, and it was kind of the interesting case. Some traditional sides were crossed and then it was also Judge Gorsuch – who I’m going to keep calling Judge Gorsuch, I guess, I probably shouldn’t. Gorsuch is kind of debut. So what happened in Trinity Lutheran and why was that as important as we all surmised it would be?
Tejinder Singh: So, sure to just refresh everybody, Trinity Lutheran is the case about whether a church playground, a preschool can participate in a program to use recycled scrap tires provided by the government to resurface its playground. The State had a policy that it would not extend this program to religious institutions of any kind and the Supreme Court held that that’s unconstitutional, that it burdens the free exercise of religion to discriminate against a church playground just because it is a church playground, when it would have otherwise qualified for the program.
There is a dissent in the case, but it’s only a 2-justice dissent from Justices Sotomayor and Ginsburg and they argue that this is the first time ever that a State has effectively been ordered to pay money to a religious institution and they think a major line has been crossed with respect to the Establishment Clause.
And the reason that this case is a really big deal, the facts don’t sound that pressing. It doesn’t sound terribly important whether you can get your hands on recycled scrap rubber for your playground or not, but there are really large questions lurking in here about, for example, school vouchers and whether programs must extend vouchers to include parochial schools, for example.
And there are other examples as well of where religious organizations are not eligible to receive public funds that certain secular organizations are. And there’s just a huge looming question now of what will become of all of those.
Elie Mystal: Right, but this is where the infamous Footnote Three comes into play, and I think it’s so great for one of the reasons why I love covering the court is because you can really have real disagreements handled in a footnote. So for those playing along at home in the decision, the majority opinion was a very slim majority as to Footnote Three that only Roberts, Alito, Kagan and I want to say Kennedy signed on to Footnote Three.
Footnote Three was the footnote that basically said, you know what, guys, we’re only worried about schools here. Like, we’re not — we’re trying to all those looming issues Tejinder just talked about, Footnote Three was kind of saying, no, we are not really deciding those looming issues right now.
Briar, who wrote a concurrence also in his writings kind of suggested that, hey guys, we’re just talking about schools, we’re not talking about vouchers, don’t be freaked out. So am I reading that right or am I wish-casting there?
Tejinder Singh: Yeah, I mean, the text of Footnote Three is amazing and I’ll just read it because it is really good. So it says, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
And that’s just like a fascinating footnote, and the disagreement about the footnote is really fascinating because you don’t often see like a vociferous disagreement in the Supreme Court about what they have not decided, but this is one of those cases where clearly some percentage of the court wants this decision to stand for a much broader proposition and to put together their majority, they sort of attempted here to narrow it, but the language they use to narrow it is also fascinating, because when you say things like we do not address other forms of discrimination, like “discrimination” is a pretty loaded word.
And to go out and basically say, there may be other forms of discrimination out there that although not addressed by this opinion. We think of a discrimination maybe to send us a pretty clear signal. So I’m sure of the language of that footnote was heavily negotiated during the opinion drafting process.
Joe Patrice: Yeah, I mean, there was the — earlier that this — I’m trying to think when I am was it this week or last week there was Linda Greenhouse article, where she focused on how Gorsuch responds kind of to footnotes, some of the things he said and whether or not that was kind of imprudent of him to question the ways in which the court’s internal politics and the internal negotiation happens.
Elie Mystal: Tejinder, what do we learn about Gorsuch, our newest justice this term?
Tejinder Singh: So Justice Gorsuch wrote five times. He wrote one majority opinion only and it was a unanimous opinion in a case about the Fair Debt Collection Practices Act pretty straightforward, statutory interpretation. He wrote also two dissents and two concurrences, and he dissented from one denial and certiorari too I guess.
And so, generally — and every time he wrote, he was in agreement with there was one other justice at least who came along with him and it was Justice Thomas.
Elie Mystal: Yup.
Tejinder Singh: And so, folks who were excited about Justice Gorsuch joining the bench because he would be sort of a Scalia 2.0 maybe a little bit surprised that he’s actually more of a Justice Thomas 2.0, and that’s a very different – very different justice.
I think it suggests…
Elie Mystal: Oh yeah.
Tejinder Singh: It suggests overall that Justice Gorsuch is likely to be more conservative than originally expected and his writing this term I think has suggested that especially on some of these questions that have really struck at the heart of political controversy and this includes same-sex marriage, this includes the religion issues and Trinity Lutheran, it includes gun rights. He is quite eager to jump into the fray.
Elie Mystal: People always have suggested — people don’t pay attention — have always suggested that Thomas and Scalia were somehow in lockstep and that’s such a poor reading of where the court is. One of the things that I like to tell people is, no, no, no, Justice Thomas is who you thought Justice Scalia was all this time; whereas, Scalia had a bit — obviously with all the originalism, the Father of Originalism, he understood a reliance interest, he understood that you weren’t actually starting from scratch and I don’t want to say moderate and Scalia in the same breath, but that moderated or mollified some of his opinions in a way that Thomas straight don’t care about. And it does seem at least from this first term that Gorsuch is much more in the Thomas vein of originalism than the Scalia vein of originalism.
Tejinder Singh: Yeah, I think that’s right and I don’t think it’s only originalism. I think it’s really when you talk about reliance interests, you’re also talking I think necessarily about the principle of stare decisis, how much respect should the Supreme Court give to its own past precedent because it’s obviously not bound by it.
And I think you’ll find them all over the place or Justice Thomas opinion saying, the Court decides this case based on past decision X, that’s fine as far as it goes, but I would have overruled X. Here’s citations to all my dissenting opinions where I said so and I still would.
He really does not care that the Court has like decided an issue before, and Justice Gorsuch appears to be exhibiting at least a little bit of that trend as well, a sense for, well, are we really going to feel ourselves bound by past mistakes? I have new ideas and I want to air them out.
Joe Patrice: I’m getting a feeling this is why Justice Gorsuch didn’t get his hug from Justice Kennedy at his swearing-in. If anyone missed that, there was an awkward moment in his swearing-in where he went to hug Kennedy and Kennedy was like, um, yeah, I’m going to pass.
Elie Mystal: I’m getting the feeling this is why our colleague David Lat is wrong. Our colleague on Above The Law, David Lat, he wrote a very passionate, very well-written piece explaining why he thinks the gay marriage is going to be safe even if Kennedy retires, but it was based on the justices having a respect for rights, interest and having respect for stare decisis that I just don’t see, but that’s I think hindered there.
Tejinder, I want to move on to — I need your help with a Packingham because I find myself agreeing with Samuel Alito and that doesn’t make me happy that makes me question my own self so –
Joe Patrice: You should take two opioids and call me in the morning.
Elie Mystal: That’s a problem for me and my ancestors, explain Packingham and try to help me not agree with Alito here.
Tejinder Singh: Sure, so Packingham was ultimately a unanimous decision, all the one where they disagree a bit about the rationale, and so, the basic question in Packingham was can a State make it illegal that is criminal for a registered sex offender to access social media networks like Facebook and Twitter that permit minors to create accounts?
And the Court says, no, you can’t do that, that violates the First Amendment, and the reason it violates the First Amendment is because social media is obviously a tremendous vehicle for the dissemination of speech and for hearing speech, and so to just blanket suppress membership or the use of these networks it would be to burden way too much speech for the purpose of protecting minors and so Justice Kennedy kind of opens his opinion as he sometimes wanted to do with some sort of sweeping pronouncements about the First Amendment in the modern Internet, and he basically comes added through the lens of like — look the Internet is really important, the Internet is where so much speech happens. We need to think about it basically like the public square of yesteryear and give it all of the robust First Amendment protections or at least hesitate before we would suspend those protections in the Internet context.
Justice Alito wrote an opinion joined by the Chief Justice and Justice Thomas and he said, look, I think cyberspace is not necessarily the equivalent, the 21st Century equivalent of public streets and parks. I think that we need to have some clear understanding of how this all works and to be a little more circumspect before we just strip governments of the ability to regulate what happens on the Internet in large part to protect children but for other reasons as well, and so he urged, I guess, a little more caution, and I’m actually interested to hear from you the parts of the Alito opinion that sort of resonate with you the most.
Elie Mystal: Well, that’s just the thing, it’s the caution for it, it’s the thought that the government while it obviously has an important interest in protecting speech and while obviously so many speech acts are now happening in cyberspace, I think it’s a bit of a false equivalency to say that every time a person hops onto Facebook or hops onto Twitter they are immediately given all of the speech protections that you get when you go to the park or go out on the street.
I think that the anonymity that the Internet allows changes needs to change the calculus a little bit or at least needs to give the government the option of changing the calculus a little bit, and so, I do think that you can — I hate to say this.
Tejinder Singh: You are like an anti-Internet bloggers. This is amazeballs.
Elie Mystal: I am obviously struggling with this part of me, but no, I worry that if you truly give in to this thought that the Internet is just like being on the street, is just like the public message board then the government potentially loses compelling interest in regulating some of the behavior that happens on the Internet which isn’t necessarily the worst thing in the world, Joe, don’t hit me.
Joe Patrice: I mean, I was most fascinated but in that whole thing, which I’m mostly disagreed with. But actually do you think there is a discussion we had about the anonymity factor that does change what the framers, for instance, when they talked about being able to go out and have an opinion, generally probably thought you’re going to go out and have an opinion, people are going to be able to check you.
That said a lot of famous opinions from that era, like say, I don’t know, the Federalist Papers were written anonymously. So I think it’s — we’re kind of drawing a little bit too much of this anonymity argument. I think there probably was anonymity that was at playback then too. We’ve just figured out who all those guys were. So we forget about it.
Elie Mystal: Yeah, I mean, I guess that’s the thing though. There is something to be said for if I write in newspaper, if I go out on the street, people can figure out who I am and shout at me for being an idiot. If I do it on the Internet there’s nothing that happens, and so, it’s from there that I start to wonder if the connection is 100% accurate the way the Kennedy put it or if I kind of agree more with Alito at least that — again I told it — just like Alito I totally agree with the decision in this particular case, but maybe slow down a little bit. I could also just be — I mean, Tejinder, honestly, I’ve got two kids, I could just be getting old, just damn straight old.
Joe Patrice: This is amazing.
Tejinder Singh: Well, I mean, we’ll do our best to stay off your lawn, but I think the point you raise is obviously fascinating, and for Court watchers it’s also interesting because watching how the Court deals with the intersection of constitutional doctrine, that’s been in place for a couple of centuries versus modern technology, it creates really fascinating and often really tricky conundrums, because the Court’s tendency is to reason by analogy to say, oh, yeah, this is just like a public park, or oh, yeah, a GPS tracker is just like a tiny constable who hops in your car, like these lines were like showed up in different judicial opinions and they show that how difficult it can be for courts to adapt constitutional thinking to modern technology.
And, if we only had like a functional legislature, there would be perhaps less of a need for this, because of course a lot of this stuff can be legislated in ways that are sensible. I think North Carolina’s law is far too sweeping, but if the law hadn’t been so crazy it’s entirely possible that it’s the old adage, bad cases make bad law, and so to the extent you find yourself uncomfortable it’s probably because you saw a predictable judicial reaction to a ham-fisted law, and if there was a little more work going on at the legislative level, I wonder if the judicial reaction would have been more subtle.
Elie Mystal: Yeah, if there just been more nuance to begin with, because there’s got to be a way, there’s got to be a way for me to keep a sex offender from tweeting dick pics at my kid, like there’s just — there’s got to be a way to make that stop.
Joe Patrice: There is the block function.
Elie Mystal: Oh yeah, but my kid doesn’t know that.
Joe Patrice: Yeah, fair enough. Well, let’s transition to something else real quick. So there was the Tam case, which we also talked about in our preview, because we expected this to function as something of an avatar for the Redskins case, which it did. This was the case in which an Asian-American rock group had tried to trademark their band name, which also was a slur for Asians. Their argument was they were reclaiming it. The Patent and Trademark Office took the stance that the law that allows them not to grant trademark registry entry for disparaging marks meant that they couldn’t do that. They challenged that, they turned out to succeed and therefore the Washington Redskins can go ahead and sell everything they want without any repercussions.
So, I guess my first question about this is, what, Tejinder, you think about this case? Was this basically how you expected this to come down?
Tejinder Singh: Yeah, I mean, the interesting question in the case to me was how do we treat the registration or non-registration of a trademark? So, if you can’t register your trademark, that doesn’t mean that the band can’t call itself the slants. It just means that if some other band shows up, and also calls itself that they may have trouble suing or there may be some issues down the line for brand identification purposes, but no one was saying it’s like illegal to name your band to this. And so, I was really curious how the Court was going to deal with the question, whether this is even a form of censorship at all and the Court basically unanimously is like, yeah, it is. You can’t just withhold benefits on the basis of your viewpoint, and it’s like, oh okay. But then on the flip-side, the Court doesn’t go all the way. The government’s argument was, well, trademark registration is really government speech, it’s us saying, this is okay, in the same way that we approve license plates. There was that case about Texas license plates, and the Court is like, no, it’s not really that at all, because you’re not really paying for the speech or whatever, really some sort of fine distinctions there.
And so, how the Court got to where it did with such unanimity is like kind of a — it’s an interesting path, the result is I think not terribly shocking at the end of the day because once you decide that this is a form of censorship, it’s kind of obvious how arbitrary the disparagement clause has been.
There’s Lisa Blatt at Arnold & Porter, she’s a wonderful Supreme Court practitioner, has made it her favorite thing in the world to just write briefs which are laundry lists of all the offensive and horrendous concepts that have been trademarked over the years as sort of an illustration of how arbitrary the enforcement has been, and I think that that point looms kind of large when you talk about censorship, and so, yeah, the result itself is not that surprising, it’s also obviously very good news for the Redskins. But, yeah, there are some interesting doctrinal moves along the way.
Joe Patrice: Yeah, and when I was reacting to it my thought was in the first page of the opinion, it kind of says, you can’t take away someone’s right of free expression, and I was like, yeah, but that wasn’t at all what anybody was trying to do here, and what I really, I took away from it was, the lesson here is that the Supreme Court has your back if you care about free speech and if that free speech is how you make money, maybe your ability to have free speech elsewhere we’re not so sure about, but so long as it’s a business trying to make money off of its speech, they are right there for you.
They will defend you to the death. That was just everything I got out of the every page of it, it was just like, you know, I mean, we’re not going to stand in the way of people making cash.
Tejinder Singh: Yeah, and it’s a parallel theme that the First Amendment has kind of emerged is like a major deregulatory tool in many areas, campaign finance being an obvious area, but also there’s this case, the commercial speech cases, Sorrell v. IMS Health was about the collection of certain health data, and there’s really lots of areas where the First Amendment has become a deregulatory powerhouse.
Joe Patrice: Yeah.
Elie Mystal: That’s a great way of putting it, yeah, I mean, it’s become one of the tools in the most business-friendly court ever toolbox. Let’s end with people who got screwed once again by our government.
Joe Patrice Yeah, we’re talking of course about people who were detained post 9/11 and wanted to sue the government for the horrific conditions they were exposed to and the court said no.
Elie Mystal: Tejinder, I did a thing with WNYC with Rachel Meeropol who argued the case for the detainees in front of the court and we had this thing maybe a week after the arguments. She was obviously very tired, but she was surprisingly hopeful and I remember her walking away and thinking like there’s no effing way this Court is going to do the right thing, and I think, of course, they didn’t. So kind of walk us through our Ziegler case.
Tejinder Singh: Yeah, so the facts are as you described, after 9/11 there was a policy of detaining Muslim men and men from certain countries were here illegally even though — and then the allegation, the complaint is that even though the government knew by a certain time that these men had nothing at all to do with terrorism or suspected terrorism, they continued to be detained unlawfully in really horrific conditions.
So they brought an action under a case called Bivens, which is the case that you use when you want to bring a civil rights action against federal officials, and basically, what the Court did and the facts of this case are important, this country’s reaction to 9/11 is a major, major issue and a major Human Rights problem for our country, but, what the Court does is it really goes even much, much — it’s much worse than that. It basically limited Bivens like to its facts. It sort of said, look, if you want to bring a Bivens case like you have to identify sort of special circumstances forever extending Bivens and courts should consider whether there’s any good reason not to before they give you a Bivens remedy.
And so what winds up happening in this case is that all but one of the claims of the detainees are basically thrown out because they don’t resemble the original Bivens claim. They’re based on an alleged policy of the executive branch which Bivens was not and there are all these others kind of distinctions drawn, and Justice Breyer dissents and he reads his dissent from the bench, which is step justices only take when they feel extremely strongly about this, and the point he makes in dissent which I think is just dead-on correct is, look, this is a major, major limitation on your ability to sue for civil rights violations and courts should be enforcing the civil rights laws and norms and constitutional norms once a crisis like 9/11 is over, if the government oversteps in its response like we should be getting in there and vindicating the rights of people who were wrongly harmed.
The majority’s response basically is like, we think that’s kind of for Congress to figure out and maybe the fact that Congress hasn’t acted shows that we shouldn’t just go around creating judicial remedies willy-nilly. So there’s a lot of debate in the opinions about how broad Bivens was originally. There’s a lot of debate about whether Bivens should be extended to novel factual circumstances. The ultimate conclusion is one that I think is very distressing for anybody who is concerned about overzealous law enforcement at the federal level or is concerned about our government adopting policies that are hostile to basic human rights. It is basically that you have very, very little capacity to get monetary relief. The Court does highlight that there may be other remedies, things like suing for an injunction or whatever, but if you are harmed by the government your chances of being made whole after the fact have just gone way down.
Elie Mystal: Yeah, and my question for that is almost to accept the premise that the majority puts out there and I know this is taking a little bit far afield, but is congressional relief the only way? Because it seems to me that piercing the veil of qualified immunity, and that’s how you get money out of the government, you have to pierce the veil, you have to remove their qualified immunity, and that way you can hold them accountable for their illegal actions that they take upon you.
And, if you can’t do that then you can’t really do anything. The courts just seem unwilling to do it, they weren’t willing to do it in Ziegler, they didn’t seem at all ready to do it in Santiago González, the kid — the border shooting kid case. So are we just waiting now for Congress to just change the law, to just kind of a sweeping change on the qualified immunity law coming from Paul Ryan’s Congress, it’s like…
Joe Patrice: Yeah, good luck with that.
Elie Mystal: …is that the only way that this is happening?
Tejinder Singh: Yeah, I don’t sense that there is a lot of appetite in the federal judiciary for limiting the scope of qualified immunity or for creating new judicial remedies. I think that the overwhelming sort of attitude has been a deference to especially law enforcement, and that’s in part, because many judges themselves are like former prosecutors or come from backgrounds where the law enforcement perspective is very, very prominent, and I think that they generally tend to believe that like other officials in government are doing the best they can. And so, there isn’t that much of a need for these mechanisms.
What’s really interesting is to watch the parallel development of these two tracks. You talk about the declining ability to get damages and then in parallel with that there is intense hostility in the Court to word application of the exclusionary rule, which is your other remedy for Fourth Amendment and Fifth Amendment violations is to have evidence against you suppressed. And so, we’re getting to the point — and a lot of times the hostility to the exclusionary rule has been justified on the grounds that, oh, you can just sue for monetary damages instead, and wouldn’t that be a better remedy than throwing out probative evidence.
But now, we’re watching that second remedy deteriorate as well, and I think at some point we may get to the point where something’s got to give, where they can’t whittle both remedies down to zero without these important provisions of the Constitution basically becoming dead letters. And so, I do expect and hope that there will be some retrenchment on some of these, but it’s going to take some doing.
Joe Patrice: The moral of the story is that whether it’s in this context or any, whatever context, it is closing the doors to the courthouse seems to be a continuing trend in my eyes, right?
Tejinder Singh: Right.
Joe Patrice: Is that kind of fair whether it’s — for these reasons in the criminal law enforcement context or over on the business side with class actions and the work that they’re getting into with forced arbitration. So on that, just people shouldn’t go to Court, it’s kind of a theme.
Tejinder Singh: Yeah, I think that is a really clear trend in the Court’s recent cases. There is these cases about personal jurisdiction, cases about class action certification, cases about arbitration as you know, there’s just again and again the courthouse door, the steps get a little steeper, the door gets a little heavier, and yeah, the ability to sue a little less meaningful every single year.
Elie Mystal: I guess we’re just lucky that Donald Trump can still find his way to the courthouse.
Tejinder Singh: Yeah, but more often as a defendant.
Elie Mystal: Whatever it takes, man.
Joe Patrice: Yeah, I stopped myself before, but made another joke. But — so I think that should wrap up we are super, super glad to have Tejinder here again and we probably will in…
Elie Mystal: October.
Joe Patrice: …a couple of months when we need our preview, so that’s your advance invitation, though you probably should have already expected it.
Elie Mystal: It’s already in the mail, man.
Tejinder Singh: Sounds good, yeah, just tweet it to me with some dick pics.
Joe Patrice: Yeah, right, that was the first invitation for dick pics for an LTN podcast I think. Oh wait, no, I think once — I think Digital Edge once maybe I don’t know.
Elie Mystal: We have run that song once, so I’m not sure.
Joe Patrice: Oh, that’s actually true. So, yeah, thanks for joining us. Thanks to all of you for listening, be sure to subscribe at whatever podcast subscribing vehicle, vector that you have, give reviews, because those are certainly helpful, and the more you do that, the better our visibility is to other people who might enjoy the podcast.
You don’t want to be like Elie discovering a history podcast like seven years after the fact what I’d like to find out now and that’s why you want to give us reviews, hopefully good ones, but you know, also you should follow our work on Above The Law, you should follow us on Twitter, I’m @JosephPatrice, he is @ElieNYC, those are all the things I think I need to say, oh, and the LTN app has all of the various LTN podcasts, great.
Elie Mystal: Learn to swim, Antarctica is coming.
Joe Patrice: There we go. All right, thanks everybody, talk to you soon.
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