JUSTICE SOTOMAYOR: But you have no reason to dispute the numerous studies we were provided that show that as a matter of routine prosecutors are not sanctioned for improper prosecutorial conduct in the investigatory stage, are you?

MR. KATYAL: Well, I do think that there is a debate in the briefs before this Court, including the brief by 12,400 or so prosecutors that takes the reverse view. But be that as it may, I think that is a question for the legislature.

This Court has said repeatedly that those ethics and disciplinary violations are -- are a

successful deterrent, and there is others as well that this Court has pointed to that may be available, including counsel's liability.

JUSTICE KENNEDY: Well, you can't have it both ways and say this is a policy we should take into account and then when Justice Sotomayor asks you a question, say: Oh, well, that's for the legislature. I mean, you're -- it seems to me you're trying to have it both ways.

—from the argument transcript

"If the court's going to go back to first principles, let's look at the statute Congress passed in 1871. ... This is one of the great civil rights statutes,” Dahlia noted that Paul Clement said near the end of his argument. But that statement—that 42 U.S.C. §1983 is one of the great civil rights statutes—is somewhat out-of-date.

A hallmark of constitutional civil rights law in the past 25 years or so is a concerted and bald rewriting of that statute by the rightwing justices, once lead by William Rehnquist and now lead by balls-and-strikes umpire John Roberts, but assisted greatly by self-styled originalists and textualists Antonin Scalia and Clarence Thomas.

But Rehnquist at least made no attempt to hide his and his conservative colleagues’ aggressive making of law based upon his own policy preferences; he did call these spades spades. And at least Kennedy openly recognized in this oral argument that judicial policymaking rather than interpretation of the statute itself is what is at issue here. The statute’s text is straightforward. It contains no exceptions—no grants of immunity.

What’s at issue in this case, unabashedly, is whether a majority of this crop of justices thinks it is good public policy to allow prosecutors to frame criminal suspects. At least two justices—Roberts and Alito—made it clear that they do. If they are joined by at least three others, their policy choice will become the law. Republicans like to call that legislating from the bench, but only when they disagree with the policy.

Of course, it is true that “[t]his Court has said repeatedly that those ethics and disciplinary violations are -- are a successful deterrent, and there is others as well that this Court has pointed to that may be available, including counsel's liability.” Katyal wasn’t kidding; the Court’s conservative majority, which regularly confuses wishful thinking for fact when it wants to justify the unjustifiable, has indeed said this. Then again, maybe the Court’s wishful thinking really does remove the need to deal with reality.

Maybe we can get this Court to also say that we’ve found a cure for cancer, thus making it unnecessary for us to continue to try to actually find one.