It Could Happen Here - The Supreme Court's New Rulings

Episode Date: June 21, 2022

Robert sits down with our favorite lawyer, Moira Meltzer-Cohen, to discuss some recent Supreme Court fuckery.See omnystudio.com/listener for privacy information.

You should probably keep your lights on for Nocturnal Tales from the Shadowbride. Join me, Danny Trejo, and step into the flames of fright. An anthology podcast of modern-day horror stories inspired by the most terrifying legends and lore of Latin America. Listen to Nocturnal on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Robert, what podcast is this for? Ah, Moira, that's a perfect way to open this episode because it could happen here.

The podcast about things falling apart and putting them back together sometimes. Not often enough because I'm a hack and a fraud. Keep doing what you want, motherfuckers. This is Robert Evans and my guest today is Moira Meltzer-Cohen.

Moira, you are my lawyer and you are my editor. You edited After the Revolution, a book in stores now. So you're many, many things to me. And today, you're going to help me understand the Supreme Court. Well, that's a lofty goal. Let me be a little more specific about why we're chatting today for the internet's sake. The Supreme Court last week issued a ruling, and there may have been another ruling by the time you hear this, but this specific ruling was about a case that had to do with what's called a Bivens action.

If you have seen people talking about this Supreme Court ruling online, it has probably been with them sharing an image of the United States that shows the 100-mile zone where Border Patrol is able to operate and being like, now, because of this ruling, Border Patrol can come into your house with impunity and do whatever they want to you. There's been a lot of like stuff said about this ruling. And as is often the case when people are, get really up in arms about the niche aspects of a court ruling, they're not entirely correct about what the ruling does. The hundred mile zone is absolutely a real thing. And the feds can do all sorts of fucked up shit to you in your house. But that is, yeah. Let's talk about this. Yeah.

Sure. So I think the first place to start is people are always asking me when can the feds kick in my door. My girlfriend always says when it's closed. What I say is whenever they want to. Right. What might change from case to case is how they rationalize it in court later. really a case that further reinforces the fact that for many, many years, federal agents, in particular border control, have been able, have had a lot of power to conduct searches if they rationalize those searches with respect to immigration, or in this case, the even more hype term, national security. So this is not new. So this is not new. The federal statute outlining the powers and duties of border officers was passed, I think, in 1952. And I believe always said that border agents can conduct searches within, quote, a reasonable distance of the border. I think case law has

determined that that reasonable distance is 100 miles. We're not really looking at anything particularly new here. So one of the things about this 100 miles is people keep saying, oh, the Fourth Amendment doesn't exist within 100 miles of the border. It does. This is not considered to be a violation of the Fourth Amendment because a search within a reasonable distance of the border is considered a reasonable search. The Fourth Amendment protects you from unreasonable searches. And this is statutorily considered a reasonable search, right? So I feel like a lot of the media around this particular case

is kind of an exercise in extreme point missing. It's both an overreaction to some things that are outrageous, but are in no way new. Everyone's sharing these maps, like you said said um and again it's one of those things where it's like we're not saying there's not a lot of that this is not a problem that there aren't problems with the hunt there isn't that the hundred mile zone isn't a problem the border patrol there's not a lot of messed up stuff that they do it's it's the idea that like this ruling came out and suddenly there's no more Fourth Amendment, right?

Which is how some people have interpreted it because the internet is a machine that devours context. That's right. Social media, I should say. Sure. So this case is called Egbert v. Boole, which I just think is a marvelous case name. Oh, and these are all incredible. The original Bivens case uh is

bivens versus six unknown named agents which i also like a lot six unknown narcotics agents yeah um oh i mean there's a lot of sort of wonderful case names um my favorite of course, is Alien v. Predator. You see what I did there? I did. I did. I just showed Garrison Aliens last weekend. So I was. Oh, for the first time? Yes.

Marvelous. So I don't know. I think what's happening here is that even among people who kind of have a sense of history or an analysis, there's maybe this lingering belief that the legal system is supposed to protect us or that maybe at some time it did protect us. And it just like persists like a vestigial tale of of like hope. Yeah. But I kind of love this case. I did read this case. And at least as Clarence Thomas describes him, the plaintiff in this case, who's Bull, is basically the viewpoint character from a Steely Dan song. He appears to have sort of sprang fully formed from the head of Donald Fagan and he drove off with his vanity plate that says smuggler. Honestly, I'm sure you're going to tell me it was something problematic, but sounds like a cool dude to me.

Well, he spent years playing both sides of this game. He would get paid by people to smuggle them across the Canadian border and he'd make them he'd like extort money from them he'd make them buy a room at his hotel even if they weren't going to stay at his hotel and then he'd charge them money for every hour that he spent driving to pick them up and take them across to canada and then he would turn around and get paid by the feds to snitch on the people who had just paid him to smuggle them across the border. Jeez. Yeah. All right. Now I don't think this guy's cool. Yeah. So he,

he basically ends up getting in an altercation with a federal agent. And he's back to being cool. Okay. And then when he makes an administrative complaint to the agency, the agent six, the IRS on him, this is, I mean, all right. It's not good behavior.

Right. Right. But now after years of doing dirty work for the feds, Bull is outraged because he never thought tigers would eat his face. Yeah. So he sues the agent under Bivens, which is a case that sort of a little bit, maybe sometimes gives individuals a very narrowly tenuous, circumscribed opportunity to sue federal agents for certain civil rights violations. And it's not a very strong right. And it has been getting ever more eviscerated since 1980. Yeah. And really what Bivens does is it gives you, you know, in the very unlikely event that you win a Bivens claim, it gives you money damages. It doesn't give you a lot. It doesn't give you

better police practices. It doesn't make you safer. It's not nothing, but it's not like it's money, which is what the law can give you. Right. So unless you're harboring the delusion that there is a sort of direct connection between being allowed to try, usually unsuccessfully, to recover money from the federal government and the self-control or good behavior of federal agents. Bivens is not actually a particularly useful mechanism for pursuing anything that resembles like a well-developed vision of justice. Yeah. Right. It's not nothing.

I don't want to dismiss the utility of Bivens, but it's not a strong right. It's not a reliable right to sue. It's not a reliable right, you know, to sue. It's not very effective. One of my beloved colleagues described it. He said, Bivens is such a bad doctrine that it's taking other doctrines down with it. Right. It's just such a weak case at this point that trying to use it and trying to invoke it can actually end up just being counterproductive, as it is in this case. Right? Yeah.

We have a very unsympathetic plaintiff, and we have a really weak doctrine. So he sues under Bivens. It goes up and down the courts. It winds up in the Supreme Court, which issues a sort of a bunch of sort of fragmented opinions. But ultimately, all the justices mostly agree. This is not a super controversial question, at least within the context of the court itself. Yeah. So the first thing is they all say, you don't, there's no right to sue for money damages under the theory of First Amendment retaliation, meaning Wohl had sued the agent for basically for punishing him for making a complaint he's saying

i exercised my first amendment right to make a complaint to the agency you work for and then you punished me by sicking the irs on me right which i see why that's questionable in the actual like legal documentation. Yeah. So, you know, the justice is saying, no, that that's not a right that exists. And then they have some differing thoughts on whether or not you can sue for excessive force.

But ultimately the, the big decision that is made here isn't about the border. It's not about the relative impunity of Border Patrol, which has long operated with relative impunity, just like the rest of the federal government. Yes. I remember that impunity when they were firing tear gas at us. Yes, I remember that impunity when they were firing tear gas at us. Yeah, you know, they decide you can't sue them, which if you ever could have sued them, I guess, in a successful or effective way, and if suing them had ever had a meaningful impact on their behavior, I guess this opinion would be a real loss. But all this opinion really does, as far as I can tell, and I've spoken with my colleagues and we all agreed that the sort of uproar over this particular case is a little baffling. of uproar over this particular case is a little baffling because all it really does is further remove what was already a really inaccessible and pretty weak remedy.

Yeah. Sorry, sorry. Well, you know, and then everyone lost their minds and started sharing the ACLU's map of what a hundred miles of border looks like and getting really mad on Twitter. Yeah. And again, the 100 mile border zone, I think it's fair to say that's a problem. I don't like, that's a bad way for things to work. The border patrol, as we talked about in our two part on the border patrol, has a lot of massive issues with it. But i feel like kind of what's happening here is some of this is like a little bit of collective ptsd because of the shock of the imminent kind of demise of roe and

so i think maybe there's this kind of expectation that every ruling issued by the supreme court because fuck it is going to be um this kind of like earth shattering, like end of a fundamental, right. And in this case, it's really just like, no, this is more or less like, this is not a massive sea change.

Yeah. We're the same. Welcome. I'm Danny Thrill. Won't you join me at the fire and dare enter? Nocturnum, Tales from the Shadows, presented by iHeart and Sonorum. An anthology of modern day horror stories inspired by the legends of Latin America. From ghastly encounters with shapeshifters to bone-chilling brushes with supernatural

creatures. Take a trip and experience the horrors that have haunted Latin America since the beginning of time. Listen to Nocturnal Tales from the Shadows. As part of my Cultura podcast network. Available on the iHeartRadio app. Apple Podcasts. Or wherever you get your podcasts. I like to say about this kind of thing, it's appalling, but it's not surprising.

I do want to note just for your listeners, this case does not in any way touch our right to sue state level police. Because there is federal legislation called Section 1983 that gives us permission to sue the police. And for some strange reason, the federal government has not passed similar legislation allowing us to sue them. That's really surprising. I wonder why. I know. So in any case, one of the things the court says in the Boole opinion is that if the feds wanted to be constrained by the citizenry, Congress wouldist moves inexplicably to make much of things that are maybe not all that much, and while also kind of failing to notice things that are really significant. And so I'd like to sort of highlight some of those things. I think there actually are real reasons to breathe and prepare and gather our courage

based on what the Supreme Court has done this term. And I'd love to talk to you about some of those things. So I do think there are real reasons, as I said, to breathe and prepare. And some of those, without getting too in the weeds. I guess I want to are the cases that are often heard, well, they're not heard, they're decided by the Supreme Court on the basis of the record below, often without oral argument, and they're often issued as holding decisions without written opinion. So they're often not justified or rationalized or, you know, the reasoning for the decisions that are made is often not made transparent to the public.

Okay. Yeah. And these are cases that are sort of highly procedural or they're not super complicated questions or they're questions of law where there's like maybe a circuit split um and they just need to resolve you know what might otherwise be repugnant views of the law right yeah and the shadow docket has recently included death penalty issues. Yeah. The deciding something of such grave importance with decisions that are not explained by an opinion where the justices do not make clear their reasoning. This is, I mean, in my opinion, it's problematic. And it's, you know, the amount of power that can be exercised by the Supreme Court, to me, I think, requires a really the amount of transparency that is, it's incumbent upon you to have is sort of inversely proportionate to the amount of power you exercise. Yeah. That makes sense.

And so the Supreme court has just, I mean, literally life is a power here. Yeah. And so for them to be making decisions on the shadow docket about death penalty cases and death penalty jurisprudence um is just wild um it's troubling it's frightening you know i i think i i can't remember if i talked to you before about um how about the injuries yeah maybe in the show about

it but i certainly talked to you about it we might need to do it it's probably a good idea at some point to do a show about it but yeah um one of the things that makes banjuris so anomalous is that they they aren't public right and that to me like this is anathema. Well, not to me. It is in terms of the sort of received wisdom about the American legal system to have secret proceedings is anathema to the underlying principles of due process, which, you know, which involves, well,iced and adhering, but really there's a commitment to publicity in the American legal system that is undermined and trampled upon by federal-appointed jurors. And I think that there's a similar thing

happening here with the shadow docket. We know at least what the cases are. We know what the opinions are, what the holdings end up being. But to have these kinds of cases being decided without oral argument, to have these cases being decided without written opinions is troubling. Yeah. So that's a move toward an exercise of power that I would characterize as authoritarian and that I find very concerning. One of the things that we're seeing cases are binding and you know if you

overturn one you really have to be very clear that that's what you're doing and you have to explain why and we see that with the leach-row draft where they they have you know if indeed they issue it sure because yeah and this is like an originalism thing right like you you can throw out precedent if you're saying all that matters is this interpretation you're saying that's based on the original intent of like some dead dudes is that more or less an accurate way to say it or you can overturn precedent um you know sure overturn precedent. Sure. Overturn precedent. Yeah.

That's, I think, the just outcome. Yeah. But I think there's many reasons that you can overturn precedent. But they seem to be doing it sort of sub-salentio, right? They're not, they're not always, the leaked road map did, was pretty clear and transparent about it. But I think there are some other things that are going on. There was a Sixth Amendment case where they just, just sort of didn't mention all of the countervailing precedent. Yeah. You know, there's some stuff happening.

There was a case in Texas that was a Sixth Amendment case where the Supreme Court sent it back down to either the District or the Court of Appeals. I don't remember. Or either the District or the Circuit. And said, look, this guy who's on death row did absolutely receive ineffective assistance of counsel. Yeah. Whether it be his prejudice. And the Texas court just ignores them yeah and that's one of those ones that people freaked out about that was like yeah i think folks should

be very unsettled by this right and then the court was like so they didn't the court the supreme court just didn't they just let them get away with it yeah um and so there's this sort of weird um push and pull happening not only between this court uh interpreting the last court opinion and deciding basically not to enforce them. But there's an interesting power struggle where the Supreme Court seems to be strategically ceding power to certain

lower courts in a way that's unusual. They're not they're not being transparent. They are not following precedence. They are not enforcing the

hierarchy of the courts, which does sound like an odd thing, I think, for me to complain about. But one of the things that we want to know is that, you know, one of the things that we want to know is that, you know, one of the ways that we can anticipate what the law is or make reliable legal arguments is that the law has to be consistent with, you know, the law of the lower courts has to be consistent

with what the Supreme court has said. And if we can no longer rely on that, it's, you know, chaotic. It's really bad for our clients, apparently, particularly clients who are facing the death penalty, which is a particular concern. This court does seem pretty intent on knocking over the entire Sixth Amendment. over the entire sixth amendment um and then i think yesterday or the day before they issued a really important immigration case on the class actions that were brought um by or on behalf of um people who were detained in immigration detention for like months and months and months without hearing without bond hearing yeah and essentially what the court held was Yeah. do or not do certain things because their claim is that the Immigration and Naturalization Act does not give them that authority. And so there's a lot, I think the big trend here is there's a lot

of protecting the federal government from any kind of accountability. Accountability that's being imposed by lower federal courts. People who are so concerned with states' rights, they have a pretty cool way of showing it. Welcome. I'm Danny Thrill. Won't you join me as the fire and dare enter? Nocturnal Tales from the Shadows, presented by iHeart and Sonora. An anthology of modern-day horror stories inspired by the legends of Latin America.

From ghastly encounters with shapeshifters to bone-chilling brushes with supernatural creatures. I know you. Take a trip and experience the horrors that have haunted Latin America since the beginning of time. Listen to Nocturnal Tales from the Shadows as part of my Cultura podcast network, available on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.

I don't know what else to say about it, because it is one of those things where when we talk about or when I talk about like frustration at people kind of sharing information about stuff the court is doing or about changes to how our rights are being interpreted by courts that are incorrect it's not because like there's not a problem it's because it's really important to be aware of like the it's really important to like see the the problem accurately um and to see it like it's this it's this broad assault like like you said the fact that the fact that you have this kind of high level attack on the fifth amendment is is really frightening because that's one of theoretically our primary protections.

Yeah, the Sixth Amendment. There's also... I think there's going to be a Miranda case soon. I think already... Oh boy. I'm not looking forward to that. I'm a little bit anxious about that. Yeah, I don't know.

I mean, I think the general thing. So, you know, I think the thing that I would like to highlight here is paying attention to what rights the Supreme Court is trampling on is obviously pretty important. to what rights the Supreme Court is trampling on is obviously pretty important. But it's pretty likely to be kind of more of the same, particularly for quality-targeted groups of people. Like, the law is, in certain respects, fictional. Like, the law is an abstract concept. Sure, absolutely, yes.

It has material impact. It's not, you know, like, I don't want to get all postmodern here. A lot of fictional things have real impacts. Sure, exactly. Like, it has real impact, obviously. it has real impact, obviously, but I think that the impact of court ruling, you know, it's very serious, it's very important,

but it doesn't sort of immediately transform the world. I think it just sort of changes what kinds of solutions we look to. Right. And like, I'm not particularly inclined to look to the court to protect me or anyone. I'm not particularly, I don't trust the law or court enough to really want them to be the arbiters of things like free speech. Yeah, absolutely not.

I mean, obviously I want the right counsel, but, you know, my hope is that we can take care of each other enough to make the course irrelevant, which I realize is a doe-eyed type thing. But I guess the thing, you know, especially with REL, and I was talking to Margaret, our mutual friend, about this. The thing that is going to change if REL is overturned The thing that is going to change if Roe is overturned is really going to be what solutions are available to us and how much courage will it take to pursue them and what are the potential consequences, right? What kind of resources do we need. I think in the face of

these Supreme Court decisions, some of which are genuinely terrible, and some of which are just reinforcing things that have long been the truth. Yeah. You know, our grief and our outrage

and our bitter toast are not practiced. They are not necessarily useful. Right. And even getting super in the weeds of you know, what does this opinion

actually say? I mean, I think that it's interesting, but it's and it's good to know and it's good to at least have somebody around, you know, what does this opinion actually say? I mean, I think that's interesting, but it's, and it's good to know, and it's good to at least have somebody around, you know. But instead of spending so much time focusing on the real nitpicky language that's being used by the unelected godpains of the United States. Maybe we should start thinking a little bit more about what are the material impacts that that might have and what are tools that maybe aren't legal tools, or at least that aren't only legal tools that might be useful in securing the things that we value. And I think that's both an important note

and a good one to end on, Moira. I will run one thing by you real quick. So I have a plan, and I want your advice on the constitutionality of this. I would like to acquire Fort Bragg. So I'm thinking what I do is I go in a Third Amendment case, right? And say that, well, I mean, if, look, you can't, what if we just extended the Quartering Act, right? Like in the, you know, could we push it even further so that nobody can host soldiers? And then all those military bases are going to be, there's going to be a fire sale. You can't keep soldiers on them. Government's not going to keep running them.

And then I get to own Fort Bragg. How are we doing? Is that legal? Is the whole end goal that you own Fort Bragg? That is one of the end goals. I think you should probably talk to your contacts at Raytheon. Okay, okay. Because yeah, you're right, they're probably going to outbid me anyway. That's really not what I'm thinking. Okay. But constitutionally, I'm on solid grounds with the third, right? That's bulletproof.

rounds with the third, right? That's bulletproof. You know, like many of the questions you ask me, the legal questions you ask me, I think the answer is nobody knows. Nobody knows. Okay, I'm going to do what the NRA did with the second, but with the third amendment. It's going to take a couple of decades, but I feel good about this course of action. Thank you for putting up with me, Moira. You had some stuff you wanted to plug at the end of this episode here. I do. I would like to plug the Repro Legal Defense Fund of If, When, How. Because if we're going to talk about Roe at all, the Repro Legal Defense Fund, which can be found at reprolegaldefensefund.org. They have a donate page. They're doing amazing work. I'm just incredibly impressed with them. They are also

at Repro Legal Defense Fund on Instagram and probably also on Twitter. But I don't really understand Twitter, so I'm not going to swear to it. That's for the best. Well, check that out. They are at Twitter.com ReproLegalFund. So, please donate to the Reproductive

Legal Fund. Twitter.com ReproLegalFund. By the time this episode drops, we may have the row thing. So I know everybody's gearing up, but you know, this is definitely, it's,

it's, it's good to help out. We all need to be like pulling because we're not going to yank this back on course through just hoping that eventually the Supreme Court gets better. Well, we can wish really hard. It would be nice. It would be nice, but

I think organizing is probably a more effective thing to do in the immediate term. So yeah, thank you, Moira, and that's the episode. It Could Happen Here is a production of Cool Zone Media. For more podcasts from Cool Zone Media, visit our website, coolzonemedia.com,

or check us out on the iHeartRadio app, Apple Podcasts, or wherever you listen to podcasts. You can find sources for It Could Happen Here updated monthly at coolzonemedia.com. Thanks for listening. An anthology podcast of modern day horror stories inspired by the most terrifying legends and lore of Latin America. Listen to Nocturno on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.