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Friday, February 24, 2017

Hernandez v. Mesa argument

Just finished the argument in Hernandez v. Mesa (shooting across the Mexican border). A couple quick notes:

The argument was dominated by Justices Breyer and Kagan, with fewer questions from the Chief or Kennedy and even fewer from Justice Alito, who I would have expected to challenge the petitioner more than he did. On that note: At one point, the transcript shows Kagan beginning to ask a question when the Chief jumped in to call on Justice Kennedy (who, according to the transcript, had not begun to say anything). I want to hear it on audio. The Chief often plays traffic cop during arguments,* although this was the first time I have seen him do it without an apparent verbal signal that someone was trying to speak.

[*] An interesting research question: Is he more likely to "call on" a male Justice, especially over a female Justice? It feels that way from the individual examples I notice. I wonder if a regularized study would bear that out.

Qualified immunity was not discussed much, only a couple of questions from the Chief and Kennedy. One of them asked whether qualified immunity accounts for different plaintiffs--that is, if case law establishes that X violates the Constitution, can courts distinguish that precedent (to find the right not clearly established) when the identity of the plaintiff subjected to X is different.

Finally, Kagan and Breyer both pushed back against the idea that Bivens must be "extended," at least for Fourth Amendment excessive-force claims to recognize a cause of action. Kagan suggested that Bivens should be understood as allowing Fourth Amendment claims unless it arises in the military context. And Kagan pushed hard on the absence of an alternative remedy here, seeming to suggest that we should not even look at special factors if the plaintiff is left entirely without a remedy. These ideas, if followed, would pull the Court back from where it has gone with Bivens in the past two decades, similar to the vision Justice Ginsburg espoused in her dissent in Wilkie v. Robbins.

Posted by Howard Wasserman on February 24, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


A US border patrol agent killed a kid by shooting across the border. The kid should get a remedy, a full remedy. What is the debate about? This is how lawyers muck up everything they touch.

Posted by: ChicagoD | Mar 1, 2017 8:33:30 AM

Jake: Thanks for sharing that paper. It actually does discuss (at 50-53) this issue, showing how often the Chief played traffic cop between Justices and how often he called on the male over the female Justice. (FWIW: The paper only found about 40-or-so instances since 2005, so not enough to offer meaningful conclusion). The paper does not offer an explanation, which, as someone above noted, may be seniority.

I suppose the test will be what happens when Kagan and Gorsuch talk over one another.

Posted by: Howard Wasserman | Feb 25, 2017 8:07:14 AM

I found the Chief's comment on qualified immunity very interesting. He asked, in essence, if the Court's cases had ever recognized qualified immunity due to jurisdictional uncertainty. That question was important, given the en banc Fifth Circuit's conclusion that the uncertainty about the extraterritorial application of the Const'n gave rise to qualified immunity. If one thinks of extraterritorial application of US law as the exercise of legislative jurisdiction, then the Chief's question squared up the Fifth Circuit holding and seemingly expressed doubt. With good cause, I would add. Lawyers might haggle about the application of US law, but it's not clear to me how that uncertainty would have informed the officer's calculus in deciding whether a shooting was justified. The officer knows that the unreasonable use of deadly force violates the law and no one suggests for a moment that any other potentially applicable law (such as the law of Mexico or Texas) would exonerate the officer.

Posted by: Jim Pfander | Feb 24, 2017 7:31:33 PM

I think Kagan and Breyer are right re: this not being an extension, but it really looked to me like there were four fairly solid votes against a Bivens action here.

There was an amusing kerfuffle on "appellate twitter" in which co-counsel for Hernandez participated about whether, if the Court does divide 4-4 on Bivens, it would proceed to consider the other questions presented and potentially rule for the petitioner, the theory being that since the Fifth Circuit found a Bivens cause of action, the Fifth Circuit wouldn't be reversed on that issue and what would be left would be to decide whether there was a Fourth Amendment violation or not and qualified immunity or not. Of course that's wrong; the Court does outcome voting, not issue voting. (There's quite a bit of interesting scholarship on the question of whether that's for the best, but there's no doubt it's the Court's practice.) It is the case that if the Court divided 4-4 on Bivens, it could still affirm the Fifth Circuit on some other ground that would generate a majority opinion for the Court (which is what's actually demonstrated by the purported examples of issue voting the issue-voting contingent on Twitter relied on), but it couldn't reverse after four Justices voted to affirm on the alternative Bivens ground.

Posted by: Asher Steinberg | Feb 24, 2017 3:53:00 PM

While not absolutely on point, this article does touch on gender dynamics on the Supreme Court as it regards interruptions by the Justices. https://empiricalscotus.com/2017/02/01/the-justices-gender-equity-and-oral-arguments/

Posted by: Jake | Feb 24, 2017 1:25:44 PM

I was there and Justice Kennedy was about to speak. He is right next to the Chief and may not have yet had his mic on. Anyway, yes, deference is based on seniority. I have not noticed any gender bias. Justices Kagan and Sotomayor are the most junior and so will always lose when there are two jumping in together and often the Chief will let one of them speak before he does. He manages argument very well imho.

Posted by: C | Feb 24, 2017 1:18:18 PM

Clearly it is when two justices are trying to get in. As I said in the original post, the transcript did not indicate that Kennedy was trying to ask a question. I don't what specific cases offer examples, only that I have seen this a lot. You may be right as to the explanations--both make sense. I was simply raising the question.

Posted by: Howard Wasserman | Feb 24, 2017 1:05:11 PM

On your "research" question, what are the other examples? At least one possible explanation is that in cases where two Justices are attempting to ask a question at the same time, the Chief will direct the senior Justice to proceed. That places both Sotomayor and Kagan in the queue as against the other Justices. The other explanation is to permit questioning by a Justice who has not asked a question or been as active during the argument--I haven't gone back over the transcript in this case, but if this was Kennedy's first entry into the argument and Kagan was as active as you assert in your own post, permitting Kennedy to ask the question would serve that function.

Posted by: Patrick | Feb 24, 2017 11:16:37 AM

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