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Brian Lehrer: Brian Lehrer on WNYC. No, the Supreme Court did not rule on Roe v. Wade today. No, the Supreme Court did not rule on whether people have a right to carry guns in public in New York City despite New York City's law to the contrary.

Today, the Supreme Court did rule on something that's relevant to what we were just talking about with our previous guests from Texas. A tweet from SCOTUSblog sums up the decision, says, "The Supreme Court rules against an innkeeper who tried to sue a Customs and Border Patrol officer for alleged violations of the First and Fourth Amendments." The Supreme Court says, "There is no implied cause of action to sue federal officers for money damages in the circumstances. The ruling was led by Clarence Thomas.

There is this other troubling Supreme Court-related story breaking this morning. Apparently, this is a Washington Post version. Headline, "Man with weapon detained near Brett Kavanaugh's home." It says, "A California man carrying at least one weapon near Brett Kavanaugh's Maryland home has been taken into custody by police after telling officers he wanted to kill the Supreme Court Justice according to people familiar with the investigation [unintelligible 00:01:29]

Back with us now is Kate Shaw, who is a constitutional law professor here in New York City. She's also an ABC News political analyst. She's at the Cardozo Law School here in Manhattan. Professor Shaw, welcome back to WNYC. Let me first ask you just to react as a human being to this notion of a man with a gun who allegedly at least says he wanted to kill Brett Kavanaugh.

Kate Shaw: Well, thanks for having me back, Brian. Yes, incredibly upsetting, both on a personal level and from the perspective of just a citizen of the country. This is also not the first apprehended individual who was seeking to and in a previous case actually did commit violence against, in that case, a family member of a federal judge. It's just about a year-plus ago that the son of a New Jersey federal district court judge, Judge Salas, was killed by an individual who went to her home. I think it's incredibly concerning that members of the federal judiciary could be under genuine threat of violence.

Obviously, this happens as we're seeing members of the public across the spectrum who are fearing and actually suffering the effects of gun violence, so it's really a very disconcerting development.

Brian Lehrer: What about this ruling that they came down with today, on not being able to sue a Customs and Border Patrol officer for alleged violations of the First and Fourth Amendment? I see that though the ruling was led by Clarence Thomas, the three liberal members of the court partially concurred. What's this case about? Do you know it?

Kate Shaw: Sure. It's got actually very colorful facts. The case involves a bed and breakfast on the United States Canadian border, that was aptly named the Smuggler's Inn. Apparently, this area was a hotspot for cross-border smuggling. This case basically involved the owner of the inn who was stopped by a border patrol agent who had some suspicion that a guest at the Smuggler's Inn was engaged in smuggling.

In the course of that altercation, Bull, who was the respondent in the case, alleged that the Border Patrol agent shoved him, threw him. Bull, the innkeeper, then made a complaint to the border patrol agent's supervisor and says that the Border Patrol agent then retaliated against him for exercising his First Amendment rights. There was a Fourth Amendment, excessive force and unlawful entry claim based on the initial altercation, and then a First Amendment retaliation claim.

The liberal justices Sotomayor with Kagan and Breyer just agree that the First Amendment retaliation claim was a novel claim that the case law didn't really support the existence of, so they parted ways there, or they agreed, rather, with a majority by Justice Thomas there, but they very much disagreed with, I think, the most important part of the case, which was the majority opinion holding that you didn't have a right to go to federal court to challenge a deprivation of a constitutional right in circumstances like this.

This case is just actually the latest in a number of cases in which this quite conservative Supreme Court has narrowed the availability of a constitutional remedy, like the ability to go to federal court and allege a violation of constitutional rights, that the possibility of doing so was announced in 1971 case called Bivens. That's a Warren Court opinion and that there were a few follow-on cases that basically said, "Look, the Constitution gives you certain rights, and if those rights are violated by federal officials, you can go to federal court and challenge those violations." In recent years, the court has really rolled back the possibility of going to court to get real remedies, and this case is just the latest installment.

Brian Lehrer: The one line of knowledge that I had about this case, before I asked you about it, that it had to do with the ability of an innkeeper to sue the Customs and Border Patrol for alleged actions. I just assumed, wrongly, that this was at the southern border, you just told us this is at the Canadian border. [chuckles]

Kate Shaw: No, the Canadian border. Yes.

Brian Lehrer: There is a big decision that we're waiting for from the Supreme Court that does have to do with the southern border, right?

Kate Shaw: That's right. There are 29 big opinions yet to be issued. We are getting pretty far into June, and the court typically issues all of its decisions by the end of June. I think it's highly likely that we're going to go into July this year. I don't really see how they could get it all done earlier than that. We all know we're waiting for the big decisions that you mentioned at the outset, Brian, on abortion, on guns, but there is also an important immigration-related opinion that the court has yet to issue.

That case involves what the Trump Administration called the migrant protection protocols and what was better known as the remain in Mexico policy, which basically required some asylum seekers who entered the country illegally to be returned to Mexico to await a hearing. Trump basically said this program was necessary to curb the flood of what he described as meritless asylum claims.

After taking office in January of 2021, the Biden administration first paused and then actually ended this policy basically saying whatever benefits the program might carry were very much outweighed by the humanitarian and foreign policy costs of returning tens of thousands of individuals often to extraordinarily dangerous conditions to await their asylum proceedings in the United States.

Texas sued the Biden administration to challenge the administration's decision to end the program. The Federal District Court sided with Texas and put the program back into effect, and the Court of Appeals for the Fifth Circuit agreed with the District Court. The Biden administration right now is under judicial edict required to continue administering a program that it sought to end because these lower courts have found that it was unlawful the way the Biden administration went about ending the program.

The court is right now considering, basically, whether to continue requiring the Biden administration to retain this policy or whether to allow the Biden administration to implement its policy preferences and end this program that it says is not legally required, in fact, really damages our national security and foreign policy, in particular our relations with Mexico. This is a case where I think there's a decent chance that Biden administration will prevail and the court won't force it to retain this policy it wants to abandon, but we don't know. There, I think, questions reflecting a number of different positions during the oral argument.

Brian Lehrer: How much was this policy ever pandemic-related, like not letting a lot of people into the country who we don't know their COVID status? We weren't letting a lot of other people from Europe and all over the place into the country without knowing their COVID status. How much was that just an excuse by Trump to just make it harder to cross?

Kate Shaw: I think that the COVID rationale was [unintelligible 00:08:56] this policy after it was created. Actually, this is initially a 2019 program. It predates the actual onset of the COVID pandemic. I think that was just a set of justifications that was [unintelligible 00:09:10] what was really just framed as an effort to curb a flood of asylum seekers, many of whom have asylum claims that would have been totally unrelated to the COVID pandemic.

Brian Lehrer: You mentioned that you think they're not going to finish their work with all these decisions left to release by the end of June as they normally do, as their calendar calls for them to do. How much do you think that's because of the leak of the abortion rights draft? There's article after article, there's another one today that I saw, I don't even remember what news organization, about a very unusual level of tension among the justices themselves.

You once were a supreme court clerk for Justice Stevens, so you know a little bit of what it's like in there. How much do you think the leak of the Roe reversal draft is affecting the timing of all decisions now?

Kate Shaw: I'm just speculating here, but I imagine it has totally upended the normal proceedings inside the building. It's always a difficult, intense time at the end of the Supreme Court's term. Opinion drafts are flying back and forth. There are negotiations happening over language. Sometimes a vote might still be in play. There's a lot of active engagement, and these are a bit difficult and really important questions.

Everyone's working really hard and sometimes there's real tension around this substance of the opinions themselves, but I can only imagine how difficult it must be to have all of that in one of the most consequential terms and recent memory and then have layered atop that this swirling set of questions about where this leak of the draft opinion in [unintelligible 00:10:52] overruling Roe v. Wade came from.

As we know from public reporting, the chief justice has ordered the martial, the chief law enforcement officer at the court to oversee an investigation into the source of the leak. There was some reporting that law clerks have been asked to participate, potentially to turn over their personal cell phone records, although we're not quite sure what that all consisted of. I imagine that both in terms of the time consumed by all of that and just what it does to the interpersonal dynamics at the court, that has surely thrown a wrench into the ordinary operations this late in the court's turn.

Brian Lehrer: As we wait the Roe and Mississippi decision, and we've got about a minute left in the show, let me ask you my pet question since you're another legal expert that I can float it to. If Roe is overturned based on privacy not being in the constitution, could abortion rights advocates come back on First Amendment religious liberty grounds? Because the main issue here, it always seems to me, is people with one religious view of when a fetus becomes a person and a minority view with that, trying to impose that definition of personhood, which is a theological and metaphysical judgment on everybody else.

Kate Shaw: I think that there has been some ceding of those arguments already, but I think you're absolutely right that there are individuals who have a sincere religious belief that abortion is not only an individual woman's choice, but also sometimes religiously required if a woman's life stays endangered by continuing with a pregnancy, and the court has never faced those religiously grounded claims in favor of as opposed to the abortion right.

I think that very well may be then one of the important next frontiers in legal and constitutional arguments about the status of abortion. I think those are just being conceived and drafted right now, it's not worth the energy in making arguments in defense of abortion rights has been in the past.

Brian Lehrer: Kate Shaw is a Cardoza Law School professor. She's an ABC Supreme Court contributor and co-host of the podcast about the Supreme Court and the law Strict Scrutiny. Thank you for being on standby with us again today for whatever decisions came down. We so appreciate it.

Kate Shaw: Thank you so much, Brian. Good to be with you again.

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