Reformation All Over Again?

|The Volokh Conspiracy |

Hernandez v. Mesa, the cross-border shooting / Bivens liability case in which the Court just granted review for a second time this morning (the first iteration was decided in 2017) appears to be the first Supreme Court case in which both lead parties were named Jesus.


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  1. At least these particular Jesuses have lawyers. Self-representation if clearly not the way to win.

  2. S/C takes 100-125 cases a year but has to review this twice in 2 years.

    C of A are far, far busier.

    It should stop wasting litigant’s time and money and resolve all the issues at once. If more briefing is need, then ask for the briefs. Stop with pointless remands, issue final judgments.

    1. Agreed. For some reason, the courts have to grandstand. Tony’s separate decisions in Windsor and Obergefell were a complete waste of time and money.

  3. Don’t get the connection between two guys named Jesus and the Reformation . . . perhaps if both were named Martin???

    1. Jesus was an apostate Jew.

  4. Sorry, as any good Lutheran knows, the Reformation was the Christ versus the Anti-Christ. Death to the Scarlet Whore!

    1. Wow, and for all these years I thought the battle was between Luther and the Pope, but then I was not fortunate enough to be victimized by progressive educators.

  5. Two persons, same essence.

  6. The Supreme Court avoided saying the obvious two years ago: the 4th and 5th amendments don’t apply at all. With Gorsuch recused and Kennedy still on the court, It decided that if it could dismiss the case on some other grounds, it could avoid reaching the issue.

    Now, why avoid it? The question posed seems so unrelated to this case that any opinion would be advisory. The first case makes clear that the application of the 4th and 5th amendments to this case are, at the very least, very far from clearly established. Why not cut to the chase and answer the real question?

  7. Justice Breyer’s opinion in the first Hernandez
    v. Mesa opinion provides a textbook strategy for shortcircuiting Roe v. Wade.

    He starts by pointing out that aliens an inch outside the border aren’t fundamentally different from those an inch inside. But of course this is equally true of abortion as well. 9 month fetuses shortly before birth are hardly distinguishable from fetuses slightly after, and birth itself is a process where drawing a line can be completely arbitrary.

    He rejects “formalism” and adapts a “functional” approach. The application isn’t extraterritorial if most of the activity involved occurred intraterritorially. So if the decision to shoot, loading and pointing the gun, etc., were all made this side of the border, the action is a territorial one in its totality.

    But isn’t this equally true of abortion? If “prenatal application” concerns the conduct, and not solely its object, than a great deal of what happens in an abortion, indeed essentially all the conduct, is entirely post-natal m. The decision to have one, all preparation, all initiation of the action, occurs entirely postnatally by post-natal actors.

    If reaching into the pre-natal world from the post-natal one means the totality of the circumstances is post-natal and hence the application should be considered a post-natal one, than Roe’s fundamental starting point – the bill of rights lacks prenatal application – would become a non-starter. If the application is the totality of the conduct, then since the conduct involved in every abortion is primarily post-natal, then every application of the Bill of Rights to the abortion context would represent a post-natal application.

    Roe dependent precisely on its formalism. That was the very source of its claim to legitimacy. Kill the formalism, and you can still invent a right to an abortion out of thin air just as easily as before. But you can no longer claim it has an arguable grounding in the constitution’s text and the court’s prior judisprudence – something even Justice Reehnquist, in his dissent inRoe conceded existed and was entitled to his respect. And if you yourself overrule Roe’s formalism and ground a new right to an abortion on a totally different basis from what Roe said, you can hardly claim you take its that Roe is a precedent whose stare decides value deserves to be taken seriously.

    If you’re not willing to stand by Roe’s core holding, if you’re not willing to take it seriously when it’s your own moral values on the line, if you come up with facile stratagems to get around it whenever you don’t like where it leads, why should anyone else.

    If you’re not actually willing to “decide the question by constitutional measurement, free of emotion and predilection”; if you’re not actually willing abide by Justice Holme’s admonition that “the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment on the question whether statutes embodying them conflict with the constitution of the United States.” If you’re not willing to do any of this whenever the opinion involved happens to be your own and one you yourself happen to feel strongly about, why should anyone take your admonitions to others, or your claim that the process you are following is a neutral legal one, seriously? 

    1. This is not a good argument for bypassing Roe.

      On its face, Roe’s causal argument driving its holding is absurd (seriously, read the decision, it’s incoherent and if applied elsewhere would lead to many absurd results).

      That doesn’t mean there aren’t stronger constitutional arguments in favor of something with a similar result.

      I’m a fan of the privileges and/or immunities argument (ex: this is a right kept by the people, so men can have abortions too, if they manage to get pregnant). There’s also a good argument for a trespass theory, though this would allow a cutoff period. The thrust of the argument is that a woman invited a fetus into her uterus, and then changed her mind, instead choosing to evict them. Use an analogy to a beggar during a snowstorm – if you invite them in, you can later change your mind and kick them out, even if doing so would likely lead to their death so long as you give them an opportunity to leave on their own. Forcing a woman to carry a child to term without a judicial sentence could also fall afoul if the 13th amendment.

      1. I find it hard to believe that, once having invited someone in, you can kick them out at a point when they are likely to die.

        Has a surgeon no responsibility to not walk away after opening a guy’ chest and putting them on a heart-lung machine?

        1. Yes, it’s contractual. But with the surgeon, she’s caused the injury if the procedure isn’t completed, so there’s liability (probably manslaughter).

          It’s the difference between being the cause of the injury and not. You hire the surgeon to injure you in a very specific way that will ultimately help you more than hurt you – but if I completed they have affirmatively injured you.

          The case might be different if you’ve somehow increased the injury in the snowstorm example – for example, if you know that the mild snow is about to get much worse, so you lure the indigent into your home for just long enough to prevent their finding shelter elsewhere. But if it’s already a storm you’re under no obligation to help (in most jurisdictions – as I understand it, Alaskans have a statutory obligation here, just like Arizona businesses are required to provide potable water, but those are the exceptions).

          1. Can you cite a source for your claims? It’s inconsistent with my understanding of the common law and prevailing rule, which is that a person “is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to the actor”. Restatement (Second) of Torts § 197(1)(a). Indeed, the Restatement appears to offer more or less the precise situation you’re describing, with the contrary result. Mi>Id. at illustration (b)(4) (“On a very cold winter night A, visiting at B’s dwelling, is overcome by an attack of illness which leaves him helpless and unable to take care of himself. A is privileged without liability to remain in B’s house until arrangements can be made to take him to a place where he will not be exposed to danger from the weather.”)

      2. Use an analogy to a beggar during a snowstorm – if you invite them in, you can later change your mind and kick them out, even if doing so would likely lead to their death so long as you give them an opportunity to leave on their own.

        I don’t believe this was the common law rule, and it certainly isn’t the law in many states today. (Indeed, I’d be somewhat surprised to learn that it’s the rule in any state.) So even if you were to accept the somewhat dubious “fetal trespass” argument, this seems to refute the claim that the constitution protects a right to abortion rather than bolster it.

        1. Roe v. Wade had two parts. The part it’s well-known for decided whether the Constitution requires abortion – whether laws restricting it violate the constitution.

          But the second, antecedent to that part, decided whether the Constitution itself prohibits abortion. If the constitution itself prohibits abortion, then the whole debate debate over whether it requires it or not, or what the law should be, is completely irrelevant. The decision that the constitution does not prohibit abortion was based on a canvass of constitutional text and a conclusion that the word “person,” wherever used in the constitution, lacks “extraterritorial application,” so fetuses have no 5th or 4th amendment rights.

          The link to this case is a 1950 decision called Johnson vs. Eisentragor, which held that the word “person” as used in the Bill of Rights lacks “extraterritorial application,” a similar outcome, phrased similarly, and based on similar logic.

          Hence this case. If the Bill of Rights lacks “extraterritorial application” means the same thing as “prenatal application”, then an alien who is shot outside US territory by someone inside it has no more Constitutional rights in the matter than a preborn fetus who is knifed by a surgical knife wielded by someone who has already been born.

          The 9th circuit said more or less, this is human life, so it must be murder, there must be constitutional rights, there must be a constitutional violation, there must be a constitutional remedy.

          But that’s exactly – precisely – what the State is Texas’ position was in Roe v. Wade. It was the only reason it offered why the Roe Court should rule in its favor.

          So if that reason is a actually a valid reason to override the formal text-based arguments used both in Eisentrager and Roe, then Roe v. Wade shouldn’t have been decided the way it was.

          And if the position deployed by those on the leftmost wing of the Roe majority, that the “it’s human life, for crying out loud” argument is irrational – it’s religion, it’s emotion, it’s not based on reason, it’s not a legitimate secular argument at all – is valid, then it ought to be valid here as well. Here too it seems the 9th circuit was guided primarily by religion and emotion in reaching its conclusion, the very same sort of thinking as in the pro-life camp on abortion.

          1. Clarification “prenatal application” in the abortion context.

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