Liberal Supreme Court Justices blast 'restless and newly constituted' right-wing majority in fiery dissent

Liberal Supreme Court Justices blast 'restless and newly constituted' right-wing majority in fiery dissent
United States Supreme Court Associate Justice Sonia Sotomayor (Travis Gettys).

United States Associate Supreme Court Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor issued a searing triple dissent on Wednesday in which they decry the Court's rightward trajectory after its majority ostensibly granted federal Border Patrol agents immunity for violating the constitutional rights of American citizens.

The case, Egbert versus Boule, "guts a seminal Supreme Court precedent, Bivens v. Six Unknown Named Agents (1971), which established that federal law enforcement officers who violate the Constitution may be individually sued — and potentially be required to compensate their victims for their illegal actions," Vox explained in an analysis. But in yesterday's 6-3 decision, the Court "eliminates the public’s ability to sue Border Patrol officers — and possibly all federal officers — who commit similar violations."

Breyer, Kagan, and Sotomayor – all of whom were chosen by Democratic presidents – argued that the Court's assaults on precedent have been supercharged by former President Donald Trump's appointment of three extremely conservative jurists: Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh.

"A restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases. The measures the Court takes to ensure Boule’s claim is dismissed are inconsistent with governing precedent," they wrote.

"The Court’s application of its new standard to Boule’s Fourth Amendment claim underscores just how novel that standard is. Even assuming the claim presents a new context, the Court’s insistence that national-security concerns bar the claim directly contravenes Ziglar. Moreover," they continued, "the Court’s holding that a nonbinding administrative investigation process, internal to the agency and offering no meaningful protection of the constitutional interests at stake, constitutes an alternative remedy that forecloses Bivens relief blinks reality."

Breyer, Kagan, and Sotomayor also outlined the likely fallout from Boule.

"Remarkably, the Court goes beyond invoking its national security talisman in this case alone. In keeping with the unprecedented level of generality the Court imports into the special-factors analysis, the Court holds that courts are not 'competent to authorize a damages action . . . against Border Patrol agents generally' (Ante, at 11). This extraordinary and gratuitous conclusion contradicts decades of precedent requiring a context-specific determination of whether a particular claim presents special factors counseling hesitation (See supra, at 6–8.4)," the trio opined.

"The consequences of the Court’s drive-by, categorical assertion will be severe," the Justices added. "Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border."

In other words, Border Patrol agents are now free to do whatever they want without having to worry about oversight, and individuals whom they harm have little to no recourse.

Read the full dissent here.

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