Access to Justice

As SCOTUS’ conservative majority weakens civil rights, Sonia Sotomayor begs to differ

In her latest dissent, Sotomayor criticizes ‘a restless and newly constituted Court.’

Sonia Sotomayor did it again.

The Supreme Court associate justice has been on fire standing up for American rights while the highest court’s conservative majority continues to narrow them. In one of Sotomayor’s latest opinions, she partially dissented in a case that could have monumental implications for millions of Americans.

No, it wasn’t the bombshell ruling that the nation is waiting for with bated breath. Perhaps that’s why the decision, released last week, felt like it flew under the radar completely. In this particular case, the court’s majority opinion concerns the ever-important topic of civil rights and sets a potentially dangerous precedent.

The case involves a 2014 dispute between Erik Egbert, a US Border Patrol agent, and Robert Boule, the owner of an inn that abuts the US-Canada border in Washington state. Egbert and Boule clashed over a Turkish guest at the inn who Egbert wanted to investigate. Boule claimed Egbert entered the property without a warrant and that he told the agent to leave but Egbert allegedly refused, got violent, and threw him against a vehicle and then to the ground. Boule complained to Egbert’s supervisors, after which the agent allegedly retaliated against Boule by contacting the Internal Revenue Service and prompting a tax audit. Boule then sued Egbert in federal court for excessive use of force (a Fourth Amendment violation) and for unlawful retaliation (a First Amendment violation).

Eventually the case landed before the US Supreme Court after an appeals court allowed Boule’s lawsuit to proceed. And last week came the 6-3 decision, where the conservative majority said that federal agents may not be held liable for the violation of constitutional rights unless Congress authorizes lawsuits for damages. In other words, the court didn’t eliminate the possibility that civil damages suits could be brought against federal officials for constitutional violations; the justices said that it’s Congress’s job to determine when someone can file a lawsuit for monetary damages in those cases.

Justice Clarence Thomas, writing for the majority, said that allowing a suit against a Border Patrol agent “presents national security concerns that foreclose Bivens relief.” A Bivens action refers to any lawsuit for damages against a federal officer for constitutional violations. Ultimately, the majority concluded that “a Bivens cause of action may not lie where, as here, national security is at issue.”

Sotomayor forcefully pushed back against the majority’s reasoning in her dissent, which was joined by justices Stephen Breyer and Elena Kagan. “This case does not remotely implicate national security,” Sotomayor wrote. She added, “The Court may wish it were otherwise,” but based on the facts of the case, “its effort to raise the specter of national security is mere sleight of hand.”

Sotomayor then correctly raises the alarming implications from such broad immunization from liability and criticizes “a restless and newly constituted Court.”

“Absent intervention by Congress, [Customs and Border Patrol] agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury,” Sotomayor wrote. “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.”

Sotomayor went on: “This is no hypothetical: Certain CBP agents exercise broad authority to make warrantless arrests and search vehicles up to 100 miles away from the border.” It’s shocking how many Americans remain in the dark about the 100-mile border zone, which delineates the country’s entire perimeter and measures 100 air miles inside.

Did you know Boston falls within the 100-mile border zone? About 65 percent of the US population lives within its limits — that would be about 200 million people. Raising the standard for private citizens to bring civil rights lawsuits for damages against Border Patrol agents is outrageous, especially when taking into account the scope of their work and a well-documented history of abuses against immigrants but also against American citizens. CBP has even flown surveillance drones during the George Floyd protests in Minneapolis.

The “crabbed standard made up by the majority makes it incredibly difficult to hold federal officers accountable even for the most egregious constitutional violations,” David Gans, the director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center, told Bloomberg Law.

Lawsuits for damages “play a critical role in deterring unconstitutional conduct by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive meaningful redress,” Sotomayor wrote. And closing “the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents” should alarm all of us.

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