Judicial Abdication at the Supreme Court

Anthony Sanders · March 11, 2020

In Hernández v. Mesa, the Supreme Court exposed the dangers of ignoring judicial engagement when it closed the courthouse doors to an aggrieved family because the Executive branch did not “want a jury” to expose the Executive to potential “embarrassment.”

 Last month, the U.S. Supreme Court held in Hernández v. Mesa that the family of a 15-year-old Mexican boy has no judicial recourse after the boy was shot in the face and killed by a U.S. Border Patrol officer—a nonmilitary, civil law enforcement officer firing from U.S. soil. Specifically, the Court held that because the killing presents a “new context,” no court may hear the family’s constitutional claims (known as “Bivens claims,” named after the case in which the Court articulated its modern conception of lawsuits brought directly under the Bill of Rights for money damages against federal officers).

The Hernández decision is a blow to civil liberties, government accountability, and judicial engagement.

One might try to rationalize the Court’s disturbing conclusion as aberrational, arguing that it involves uncommon law enforcement behavior or the foreign policy complications of a noncitizen standing on foreign soil. As explained below, all of those considerations fall apart upon examination. Regardless, the Court’s reasoning and language in Hernández are much broader—and wholly inconsistent with U.S. history, our constitutional order, and basic judicial responsibility to vindicate constitutional rights.

Justice Alito’s majority opinion (joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh) closes the courthouse doors to the Hernández family by framing the issues as revolving around national security and foreign policy. In doing so, the majority stresses the Court’s recent conception of damages claims against federal officers as a “disfavored judicial activity.” But as explained in amicus briefs filed by the Institute for Justice and by legal scholars, this ignores the historical role of U.S. courts. Indeed, “the Framers believed so strongly in the need for judicial enforcement of individual rights that they extended [the right to recover damages against abusive government officers through jury trials] to foreign nationals” (IJ brief, p. 10-11). And for decades after the Founding, “the courts adhered to their responsibility to determine whether the laws had been violated and to provide suitable redress—even in cases requiring the evaluation of military judgments made during the heat of a campaign outside America’s borders” (Scholars brief, p. 17).

The majority brushes aside this historical judicial role. It insists that because no congressional statute spells out the right to bring constitutional claims against federal officers, the judiciary’s recognition of such claims would encroach on the separation of powers. What about the fact that the Westfall Act does indeed authorize such claims “brought for a violation of the Constitution,” as pointed out in IJ’s brief? The majority waves that away in a footnote, arguing that the statute “simply left Bivens where it found it”—i.e., limited to the contexts in which such claims already happened to have been successfully litigated at the time of the statute’s passage. Why is that so, given the lack of such limiting language in the statute or in its legislative history? Justice Alito does not tell us, or explain why this case (which, like Bivens itself, arises under the Fourth Amendment and involves individual law enforcement overreach) should be excluded from the courts’ robust enforcement of Bivens remedies in the years leading up to the statute’s enactment.

Ahistoricism and statutory rewriting aside, the majority’s insistence that its decision is based on respect for the political branches’ supremacy in the “national security” context ignores the Court’s own admonition that the Executive branch’s invocation of that phrase “must not become a talisman to ward off inconvenient claims.” Why should national security concerns foreclose claims alleging that a civil law enforcement officer shot and killed a boy who posed no threat to anyone? They shouldn’t—unless the Court ignores the facts of the case before it and rules in the abstract, while choosing deference to the government over engagement with the facts and respect for constitutional rights. In other words, unless the Court ignores its own constitutional role “to say what the law is.”

The majority’s “foreign policy” rationale also makes little sense. As explained in Justice Ginsburg’s dissent (joined by Justices Breyer, Sotomayor, and Kagan), the Hernández family was not asking a federal court “to arbitrate between the United States and Mexico.” They brought a simple “civil damages action” under U.S. law, against a nonmilitary U.S. law enforcement officer who was ostensibly enforcing U.S. civil law enforcement statutes on U.S. soil. The case was, in short, “no different from one a federal court would entertain had the fatal shot hit Hernández before he reached the Mexican side of the border.” (Indeed, at the time of the shooting, the officer had no way to know that he was firing at a noncitizen, or that the bullet would happen to strike the boy on the Mexican side of the border—facts that the Court recognized the first time this case reached its docket.)

Somewhat shockingly, the majority tells us what it’s actually doing: kowtowing to the Executive branch, simply because that branch (under whose authority the Border Patrol officer was acting, and which declined to prosecute him for the killing or extradite him to Mexico to face prosecution) does not “want a jury in a Bivens action to apply its own understanding of what constituted reasonable conduct by a Border Patrol agent under the circumstances of this case”—lest the Executive branch risk “embarrassment.” What would a Supreme Court that fulfills its constitutional role have said to this argument by the Executive? Justice Kagan told us at oral argument: “[W]e live in a country in which courts play an important role in determining whether conduct is lawful. And that’s not an embarrassment to the United States or to the executive branch.”

The dangers of the Court’s deference to the Executive are obvious as a general matter: the Executive branch wields the guns and does not want to be accountable when it misuses them. Those dangers were made concrete in an amicus brief filed by former border officers, who stressed to the Court how pervasive excessive force is by the Border Patrol, and how the agency lacks accountability within the Executive branch. Those former officers were asking the Court to engage with the facts and fulfill the judicial role. The Court declined.

Unfortunately, Hernández is part of a trend. The Court regularly shields government actors from liability and accountability. This is the abdication of judicial responsibility, cloaked in the guise of judicial modesty. IJ’s Project on Immunity and Accountability is working to roll back the federal judiciary’s unwillingness to fulfill its constitutional role, but decisions like Hernández show how far we have to go.

Jaba Tsitsuashvili is an attorney at the Institute for Justice.