Two alarming trajectories at the Supreme Court

Opinion | Two alarming trajectories at the Supreme Court

The Supreme Court building. (Jonathan Newton/The Washington Post)

By Radley Balko

This month, the Supreme Court heard oral arguments in two cases that at first seem to have little to do with each other. One case is criminal, the other is civil, and they arise out of different areas of law. But together, they highlight two alarming trajectories in federal jurisprudence: As courts increasingly look to shield law enforcement officials accused of violating the law, they’re increasingly reluctant to protect the rights of everyone else.

The first case involves a motel owner named Robert Boule, who objected when a border patrol agent tried to question the immigration status of one of his customers. The agent then shoved Boule to the ground. When Boule complained to the agent’s supervisors, the agent referred the motel owner to the IRS for investigation into his taxes — a clear act of retaliation. So Boule sued.

The question before the justices is whether Boule’s complaint should ever be heard by a jury. In the 1971 case Bivens v. Six Unknown Named Agents, a case in which federal drug agents had illegally detained a man and illegally searched his home, the Supreme Court ruled that federal agents can also be sued, finding that rights aren’t rights at all if there’s no way to enforce them.

But since that ruling, the court has declined nearly every opportunity to expand Bivens, to the point where to get relief, a plaintiff must present facts almost identical to that case. When a U.S. border agent shot and killed an unarmed 15-year-old Mexican boy, for example, the court barred his family from suing. It also denied Muslim immigrants who had been inappropriately detained and allegedly tortured shortly after the Sept. 11 attacks. To be clear, the court’s analysis in both cases wasn’t about the facts — its rulings assumed the allegations in both cases were true.

Perversely, because the court believes that being bound by its own precedents is a core part of its legitimacy, justices’ stubborn refusal to provide relief to people who were clearly harmed by federal law enforcement has become, in itself, the biggest barrier to providing relief in new cases in which people were harmed by federal agents. (As for state and local officials, the Supreme Court has concurrently shielded them by strengthening the doctrine of qualified immunity to almost absurd levels.)

A decisive ruling against Boule would all but overturn Bivens, leaving federal agents free to violate the Constitution with near impunity from civil liability. At least two justices — Clarence Thomas and Neil M. Gorsuch — have already called for precisely that.

The second case, which involves two physicians separately convicted of drug trafficking, provides a revealing contrast. Under federal law, any doctor who prescribes controlled drugs outside “the usual course of professional practice” is guilty of a federal crime. That’s a vague standard, and fear of prosecution has limited research on the potential medical benefits of drugs such as marijuana or psilocybin.

For years, the medical community has been embroiled in a related and particularly intense debate about how to treat chronic pain. A minority position argues that as chronic pain patients build up tolerance to opioid painkillers, it can be appropriate and legitimate to prescribe larger quantities of the drugs to provide relief. The majority position is that this is bad practice, and its proponents blame overprescribing for the epidemic of overdose deaths (though it’s worth noting that overdose deaths have continued to soar even as prescriptions have plummeted).

But rather than let the medical community decide and enforce appropriate standards through professional discipline, prosecutors and drug enforcement officials have appointed themselves arbiter of what is and isn’t legitimate medical practice. The penalty here isn’t professional discipline or the loss of a medical license. It’s years or decades in prison.

In both cases now before the court, lower courts decided it doesn’t matter if the doctors sincerely believed they were helping their patients. This means that not only would the government not be required to prove criminal intent but also that whether a crime has been committed at all would be contingent on a narcotics officer or prosecutor’s interpretation of a legitimate medical purpose.

It isn’t clear from oral arguments how the court will come down in either case. But the mere framing of the issues in question is telling. In one case the court will consider whether federal law enforcement agents who clearly, knowingly and willingly violate someone’s constitutional rights can even be held financially liable (though in nearly all cases they’re indemnified even if they lose). In the other, it will decide whether two doctors should be held criminally liable and imprisoned for 20 or more years based on law enforcement officials’ opinions about proper medical treatment — even if the doctors believed they were acting in their patients’ best interests. What is clear is that as the judicial branch continues to chip away at the rights of regular people accused of criminality, those entrusted to enforce the law are increasingly unlikely to be held accountable when they break it.