9-0: SCOTUS rules that Eighth Amendment's "excessive fines" clause applies to the states

Remember the oral arguments in this case? Sure you do. They went so badly for the state of Indiana that Court-watchers took to predicting a lopsided defeat afterward, something they normally refrain from doing. It’s the justices’ job to be skeptical during questioning, after all. Can’t read too much into when they’re hard on one side. Usually.

But they were right, this was an unholy whupping. 9-0 decisions aren’t unusual for the Court but it’s a bit unusual to have everyone on one side for a landmark constitutional ruling, finding that the “excessive fines” clause of the Eighth Amendment applies to the states via the Fourteenth Amendment. The biggest point of disagreement between the justices, in fact, was a law-nerd dispute over whether the Due Process Clause or the Privileges or Immunities Clause, which has been a dead letter in constitutional jurisprudence since the late 19th century, is the provision that grants citizens protection from excessive fines levied by their state governments. (Clarence Thomas and Neil Gorsuch prefer the latter, the rest of the Court is sticking with the former.) But as to the bottom-line result, there’s not a whisper of disagreement: No, of course your local government can’t seize your $40,000 SUV in connection with a crime when state law says the maximum fine is $10,000.

Ginsburg wrote the opinion of the Court. Yes, conspiracy theorists, she’s alive.

Follow the last link and read through (it’s only nine pages) for a brief rundown of prohibitions on excessive fines in Anglo-American law, dating back to Magna Carta. The touchstone of whether a provision in the Bill of Rights applies to the states is whether the right it guarantees is “fundamental.” Given the history, it was a no-brainer.

It’s interesting that Ginsburg got the call on the opinion in this case. When the chief justice is in the majority, as he was here, he can assign the opinion to anyone he likes, including himself. Doing so would obviously give him control over how broad or narrow the opinion is, and sometimes in a major unanimous decision the chief wants to signal the unity of the Court by speaking for the nine members. Not here. Not only did Roberts hand it off, he handed it to the Court’s senior liberal. Mark Joseph Stern noticed too.

Right, or he may suspect that Ginsburg’s career is winding down and he wanted to give her a notable opinion on the way out. Either way, today’s decision is potentially significant for two related aspects of law. One is the law-nerd debate I mentioned about the Privileges or Immunities Clause. Now that there are two justices who want to shift the Court’s “fundamental rights” jurisprudence to that Clause from the Due Process Clause, it’s at least conceivable that a majority will reach that conclusion in the semi-distant future. If they do, it could have major implications:

Right, by its own language, the Privileges or Immunities Clause applies to “citizens of the United States.” The Due Process Clause applies more broadly. How the Court would adapt rulings made under the auspices of the latter to a new line of cases under the former is anyone’s guess.

The other potential earthquake from today’s opinion is how it might apply in court to civil asset forfeitures, a big revenue-generator for local governments and the scourge of civil libertarians. Clarence Thomas wrote an opinion two years ago inveighing against modern asset forfeiture practices; Neil Gorsuch is also a skeptic. It’s possible, if not probable, that there are five votes on the Court right now to rein in the worst asset-forfeiture abuses. Today’s ruling is an obvious jumping-off point for that inquiry.

Jazz Shaw Jun 22, 2021 6:01 PM ET