Professor Andrew Kent is quoted in a Law360 article about a border patrol shooting case that is going to the U.S. Supreme Court and will decide if the father of the victim has the right to pursue civil damages.
The full Fifth Circuit decided against extending the Bivens remedy to the cross-border shooting in this case, holding that it would “interfere with the political branches’ oversight of national security and foreign affairs.” Meanwhile, the Ninth Circuit in a very similar case found that a border patrol agent was not immune to liability and allowed a dead teenager’s mother to proceed with a damages claim.
While seen as a close call, court watchers predict that the justices will ultimately side with the Fifth Circuit. Bivens claims have been an unpopular doctrine in the Supreme Court in recent years, according to Shira A. Scheindlin, of counsel for Stroock & Stroock & Lavan LLP and a former federal judge for the Southern District of New York.
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Although the smart money says the two conservative justices appointed by President Donald Trump — Justices Neil M. Gorsuch and Brett M. Kavanaugh — will rule to affirm the Fifth Circuit, it’s still an open question. For one, no one knows which justices made up the required minimum of four votes to grant certiorari — and the answer to that could speak to the positions held by the court’s newest members.“I’m a little puzzled as to who’s voting for cert here,” said Andrew Kent, a law professor at Fordham University who specializes in constitutional and foreign relations law. “If the liberal justices are voting for cert, they must know about a Kavanaugh or Gorsuch vote that isn’t apparent to the outside world.”
But if the four cert votes largely originated from the conservative justices, the case will likely end in an affirmation of the Fifth Circuit, Kent said.
“I would say it’s 60-40 that they affirm the Fifth Circuit,” he said. “We’re talking about two new justices and I probably know how they are going to vote but you can’t be sure. This will be the first time Kavanaugh and Gorsuch will be confronting this particular constellation of issues.”