Remember back in 2006, during his nomination hearings, when Associate Justice Samuel Alito was just Strip-Search Sammy, and the late Senator Ted Kennedy was so mean to Strip-Search Sammy that the nominee’s wife fled the hearing room in tears because she could no longer handle the intimation that her husband had a problem applying the equal protection of the law to anyone less melanin-deprived than himself? From ABC News:

Senator Lindsey Graham, R-S.C., had been sympathizing with Alito, telling him he was sorry he was being subjected to grueling questions from Democrats. In an effort to settle the matter of whether the nominee was prejudiced against women and minorities, Graham asked him directly, but sympathetically, "Are you a bigot?” Alito responded, "I'm not any kind of bigot.”

It was at this point that Alito's wife, who was sitting right behind her husband, began to cry and left the hearing. After a recess in the hearing, she returned for its remainder. One White House official later said that Mrs. Alito viewed the attacks on her husband as disgraceful. "She was very upset that a good and decent man would get attacked," the official told ABC News. "It's outrageous.”



Outrageous, I tells ya. Even then-Senator Joe Biden, who grilled Alito and got his previous brush with plagiarism slapped back at him by the nominee, was heard to muse something to the effect of this being no way to run a confirmation process. It’s hard even now to imagine how unfair that was. Well, maybe not so hard, at least not on Tuesday. From the AP:



Justice Samuel Alito wrote for the court that the case is tragic, but that strong border security and international relations issues led to the ruling against the parents of Sergio Adrian Hernandez Guereca. “Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reasons to hesitate" about allowing the parents to sue in American courts, Alito wrote.

By the now-customary 5-4, the Supreme Court ruled that the family of Guereca, an unarmed Mexican 15-year-old killed by a Border Patrol officer in 2010, could not sue the officer or the Border Patrol in an American court under what is called a “Bivens action.” That's a legal proceeding with its roots in a 1971 Supreme Court decision under which an individual could be said to have an implied cause of action against federal officials operating under the color of law who are determined to have violated the individual’s constitutional rights. In this case, the cause of action is painfully clear and the guilty mind of the officer who killed the boy is undeniable, since the officer endeavored to cover his ass after the shooting.



The family said Sergio was playing a game with friends on a June evening, running through a culvert and over the border, touching it, and running back. Mesa rode up on a bicycle, took Sergio's friend into custody, then fired across the border. The Justice Department said Mesa was trying to stop "smugglers attempting an illegal border crossing" and fired his gun after he came under a barrage of rocks. Mesa said in court filings that Sergio was among the rock throwers. Video footage of the incident seems to dispute that. U.S. officials chose not to prosecute Mesa, and the Obama administration refused a request to extradite him so that he could face criminal charges in Mexico. When the parents of the boy tried to sue Mesa, federal judges dismissed their claims.



In a separate concurrence, and because he is a twisted soul who is realizing that his time for exacting vengeance on the world may be running out, Justice Clarence Thomas advocated for doing away with Bivens actions entirely. Which would pretty much enable agents to turn any federal law-enforcement action at the border into the OK Corral.

Clarence Thomas wanted in on the act. The Washington Post Getty Images

Meanwhile, elsewhere in the rapidly devolving federal judiciary, the Ninth Circuit Court of Appeals took a big whack at the reproductive freedom and privacy rights of poor women by upholding an administration* "gag rule" regarding information concerning abortion. From the Washington Post:



Monday’s ruling is the first substantive court decision on a move by the Department of Health and Human Services that heightened a long-brewing antagonism between social conservatives on one side and Planned Parenthood Federation of America and other family planning groups on the other. Under federal law, health-care groups were already barred from using federal funds for abortion services. The rule issued by HHS a year ago went further, forbidding health centers that provide abortions or refer patients for abortions elsewhere from receiving any money through the half-century-old family planning program — a change critics lambasted as a “gag rule.” The rule also requires health centers to erect “clear physical and financial separation” between services funded by the program and other activities.



The opinion, written by Circuit Judge Sandra Ikuta, appointed to the court by former president George W. Bush, said the Trump administration’s rule is slightly less restrictive than a 1988 version upheld by the Supreme Court. The decision also says the rule’s separation requirement is not arbitrary or capricious, rejecting opponents’ argument that HHS did not consider potential harm to clinics and patients.



A Justice Department spokeswoman, Mollie Timmons, said in a statement: “We are pleased by the … decision upholding HHS’s rule forbidding the use of taxpayer money to subsidize abortion through Title X grants. Congress has long prohibited the use of Title X funds in programs where abortion is a method of family planning and HHS’s recent rule makes that longstanding prohibition a reality. We look forward to continuing to defend this vital rule against all challenges.”

Vital, I tells ya. This one’s headed to the Nine Wise Souls, I’m sure. So odds are that I’ll be writing another gloomy post on this one day soon.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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