Rarely does oral argument before the Court go so badly for one side that legal observers will dare to say afterward that the other is likely to win. Even more rarely does that happen when SCOTUS is being asked to issue a landmark constitutional ruling, in this case whether the Eighth Amendment’s ban on excessive fines should apply to the states via “incorporation” into the Fourteenth Amendment.
But one commentator after another who followed this morning’s hearing in Timbs v. Indiana is out on that limb today. The NYT, the AP, SCOTUSblog, Slate, Reason — they’re all predicting crushing defeat for the state of Indiana and, by extension, PDs nationwide who’ve gotten into the habit of seizing and keeping cars and other valuable property used by suspects incidentally in the commission of crimes.
That oral argument must have been some ass-kicking. The justice who kicked the most ass, apparently: Neil Gorsuch.
Gorsuch then told the Indiana SG that he was going to lose, and if he kept arguing the merits, he’d lose even worse. Then he and Sotomayor teamed up to say he was defending a “star chamber.” pic.twitter.com/natRztgPHQ
— Mark Joseph Stern (@mjs_DC) November 28, 2018
The newest Trump appointee also seemed ready to rule against the state, at least on the threshold question of whether the Excessive Fines Clause applies to the states. “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?” asked Brett Kavanaugh. The outcome on that point seems a foregone conclusion. The only question is whether the seizure in this particular case will be held to have violated the Eighth Amendment.
Take five minutes to read the AP account of the facts that led to today’s hearing. It’s a modern American tragedy in every respect: Tyson Timbs suffered a minor injury at work, was prescribed hydrocodone for the pain, got hooked, graduated to heroin, then graduated to selling heroin. Cops in Indiana nabbed him for selling $400 worth of the drug. He received no jail time but his $40,000 Land Rover was confiscated on grounds that he had driven it to the scene of the drug sale where he was pinched. Considering that the maximum fine allowed by law for Timbs’s offense was $10,000, losing a $40,000 vehicle might seem — what’s the word? — excessive. Stephen Breyer floated a hypothetical:
“What is to happen,” Justice Breyer asked, “if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes or a special Ferrari or even jalopy?”
Mr. Fisher said there would be no constitutional problem with a state law authorizing such seizures. That answer did not seem to satisfy the justices.
Gotta do better than that when a justice floats an absurd hypothetical at you, particularly when right-wing appointees like Gorsuch and Kavanaugh have already all but told you that they’re going to hold that the Eighth Amendment’s clause on excessive fines applies to the states.
If you’re surprised to find conservative appointees out in front on this issue, you shouldn’t be. Pop quiz: Who wrote this about civil forfeiture last year?
That’s conservative hero Clarence Thomas. Nor is today the first time Gorsuch has made his contempt for civil forfeiture known. Earlier this year, in an immigration case, he addressed the question of whether the Court should review statutes that impose civil penalties like deportation with the same degree of scrutiny that it uses for criminal penalties. We should, Gorsuch argued, because modern civil penalties can be almost as draconian as criminal ones. He had civil forfeiture in mind:
[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies.
Given Kavanaugh’s view on incorporation of the Eighth Amendment, there’s a solid chance that both Trump appointees plus the right’s favorite justice, Thomas, will vote with the liberals to limit state power over civil seizures. And if they do, it’ll raise the question of how far they might be willing to go down the road to limit federal power over “excessive” forfeitures. That’s where the real money is — $29 billion between 2001 and 2014 to be exact, according to one report.
As for the politics, this is an excellent point, one that will be overlooked by many:
I am loving Gorsuch today. What a performance. Garland was deferential to law enforcement and would have totally gone the othe rway. https://t.co/feJ61BSeCI
— Emily Zanotti (@emzanotti) November 28, 2018
Possibly. One of the reasons Merrick Garland was Obama’s choice to replace Scalia was because he’s a bit more centrist on criminal justice issues than the average Democratic appointee. O thought that was his best bet of getting a justice confirmed by McConnell and the Republican Senate majority. Maybe a few centrist Republicans would split off from the pack and support a hearing for Garland, drawn to his reputation for giving cops the benefit of the doubt. It didn’t work — but the consolation prize for lefties is that the guy who did replace Scalia seems to take a more libertarian view on law enforcement issues than perhaps Garland himself would have and certainly many other Republican appointees would have. Some liberal observers have noticed, too. Just a week ago Slate marveled that Gorsuch and Sonia Sotomayor have begun “teaming up to protect criminal defendants.”
How President Law And Order will cope with this development is anyone’s guess. I don’t want to short-change him; he got behind criminal-justice reform in Congress, so he’s not incapable of surprises. But police won’t be happy about having their civil seizure powers curtailed and Trump doesn’t like it when police are unhappy. What happened to Gorsuch’s loyalty, he may wonder. The tweets will be magnificent.