A fascinating divide just opened up between Trump’s Supreme Court appointees and Bush’s

Indiana Solicitor General Thomas Fisher walked into a buzz saw Wednesday morning, when he told the Supreme Court that his state has a virtually unlimited power to take people’s cars.

Fisher claimed this power in Timbs v. Indiana, a case involving a breathtakingly broad Indiana law permitting the state to seize vehicles from drivers who commit very minor drug crimes. Tyson Timbs, the man at the heart of the case, stands to lose his $42,000 Land Rover after he sold just $385 worth of heroin to undercover officers.

The moment when Fisher’s face hit a spinning blade came shortly after Justice Stephen Breyer wondered whether Indiana would acknowledge any constitutional limit on the state’s power to seize property. Suppose, Breyer asked, that the state passed a law requiring “anyone who speeds” to forfeit their car. Could a person who loses their vehicle over a speeding ticket challenge such a seizure under the Constitution?

Fisher’s response was as unequivocal as it was tone deaf. “Yes,” he said. The car “is forfeitable.”

It is unlikely, to say the least, that Indiana will prevail in Timbs. Indiana’s loss, however, is likely to be narrow. And Wednesday’s argument focused as much on how little Indiana could potentially lose as it did on the actual legal issue before the Court.

However, it also exposed a potentially significant generational divide between the older conservatives on the Supreme Court and its two newest members. Though Chief Justice John Roberts may ultimately join a unanimous decision against Indiana, he appeared concerned that such a decision in Timbs would force the courts to decide difficult cases they are ill-equipped to weigh. Similarly, Justice Samuel Alito appeared bothered by the case’s implications for prosecutors.

Neil Gorsuch and Brett Kavanaugh, by contrast, showed no such fears about excessive judicial power. If Roberts spent the morning looking for a way out of a morass, Gorsuch spent it gleefully marching forward chanting “Game on!”

“In rem” and “incorporation”

The specific legal question in Timbs involves antiquated doctrines of the sort one might find in a Charles Dickens novel about excessive legal procedure.

For most of American history, the Supreme Court held that the Bill of Rights does not apply to the states — only the federal government was required to comply with the first ten amendments. In 1897, however, the Supreme Court held for the first time that states must follow a provision of the Fifth Amendment. Then, over the course of the twentieth century, the Court gradually held that other provisions of the Bill of Rights apply to the states — a process known as “incorporation.”

Today, most — but not all — of the Bill of Rights is incorporated against the states. The Court, however, has never authoritatively stated that the Eight Amendment’s ban on “excessive fines” is incorporated. Timbs asks the Supreme Court to incorporate this shield against such fines.

The second doctrine at issue in Timbs involves something known as “in rem” seizures.

Typically, when a state (or anyone else for that matter) initiates a court proceeding, they bring it against a particular individual or company, claiming that this defendant has violated the law in some way. These typical suits are known as “in personam” proceedings.

Occasionally, however, a state may initiate a proceeding against a piece of property. The idea behind these suits, as Justice Sonia Sotomayor put it during Wednesday’s argument, is that the property itself is “charged with being involved in a crime.” Thus, for example, a car used to carry small quantities of heroin may itself be subject to an in rem proceeding. If the car loses, the state may seize it.

Historically, in rem suits were typically used to solve the problem of a defendant who is not present in a state and may not be subject to the state courts’ jurisdiction. Can’t charge John Doe with a crime? Maybe he has some property in the state that was used in the crime, and that property could itself be charged in an in rem proceeding.

Yet, as Sotomayor noted, this isn’t really how Indiana’s forfeiture law is used. Instead, the law largely functions as a way to impose additional “punitive” sanctions on drug offenders. Timbs was present in Indiana, subject to its courts’ jurisdiction, and he was, in fact, sentenced to “home detention” and to probation. The in rem proceeding against Timbs’ Land Rover was really just a way to impose additional punishment on him.

Indiana, for its part, didn’t even try to argue that the Excessive Fines Clause doesn’t apply to the states. Instead, it argued that the Clause should not be incorporated against the states solely with respect to in rem suits. States would not be able to impose excessive fine against in personam defendants, under this theory, but they’d have a potentially unchecked power to seize property in in rem suits.

This is why Fisher wound up arguing that a state could force a person who receives a speeding ticket to give up their car. It’s also why Fisher’s brief relies heavily on an 1833 case involving “an enormously valuable, nearly four-hundred-ton vessel” that was successfully seized because its “178 passengers exceeded the limit by a single traveler.” Under Fisher’s proposed rule, the Constitution does not prevent a state from taking a multi-million dollar ship over such a minor violation.

The oldliners vs. the young guns

No member of the Court appeared convinced by Fisher’s claim that in rem suits are immune to Eighth Amendment scrutiny, but Roberts and Alito did seem very worried about a world where fines of any kind can be tossed out as excessive. At one point, Roberts pondered whether property forfeiture may “always be proportionate” if the property was used in a crime.

Alito, meanwhile, spent a fair amount of time suggesting that it would be absurd to apply the Excessive Fines Clause to this particular case. The crimes Timbs was convicted of, Alito noted, carried a maximum sentence of 20 years. Is a $42,000 fine really excessive if the state may also take away many years of someone’s life?

Similarly, Alito suggested that courts will not easily be able to determine how big a fine is too much. Imagine that Mr. Timbs committed his crimes while driving a “15-year-old Kia.” Would the Excessive Fines Clause prevent Indiana from seizing a $1,500 vehicle? Or what if Timbs drove a “Bugatti” worth a quarter-of-a-million dollars? Should the Constitution really be read to give rich defendants more protection than poor ones?

Yet, while Roberts and Alito were clearly bothered by the idea that the Eighth Amendment might let someone like Mr. Timbs keep his car, their objections faded into the background after a brutal line of questioning from Gorsuch.

Don’t “we all agree,” Gorsuch asked, that the Excessive Fines Clause is incorporated against the states? Whatever that Clause protects, all of it applies in the same way to states and the federal government alike. Gorsuch wanted no part of a world where the Constitution means two different things depending on whether the federal government or a state is accused of violating it.

Kavanaugh quickly agreed with Gorsuch, and he raised a related objection that seemed designed to win the hearts of wayward Republicans. Did McDonald v. City of Chicago, a case holding that the Second Amendment is incorporated against the states, only impose a watered-down version of the Second Amendment on state lawmakers? Or does the full-throated Second Amendment apply to states and the federal government alike? Kavanaugh’s tone left little doubt that he thinks the Second Amendment applies equally to all governments.

Ultimately, it’s likely that the force of Gorsuch and Kavanaugh’s arguments — combined with the weakness of Indiana’s — will reluctantly pull Roberts and Alito into an opinion holding that Indiana cannot ignore the Excessive Fines Clause.

Alito, for his part, expressed his own concerns about a world where the Second Amendment doesn’t apply in its full force against the states. And Roberts eventually chided Fisher that his argument boils down to “this isn’t an excessive fine.” On the narrow question before the Court, there seemed to be a consensus that Indiana cannot simply ignore the Excessive Fines Clause.

Nevertheless, the argument revealed a very real tension between the older conservatives and their younger counterparts. If the Supreme Court were a bingo card, Alito is a free space for prosecutors. And his questions suggested that he was probing for ways to ensure that Timbs loses his car.

Roberts, meanwhile, retains some of the concerns about unchecked judicial power that animated conservatives during the Reagan years. He’s probably going to go along with a decision permitting people like Timbs to invoke the Excessive Fines Clause, but Roberts is not going to like it. And he’s going to hate watching lower courts wrestle with how burdensome a fine needs to be before it becomes excessive.

In Roberts’ preferred world, it is likely that Timbs is able to raise an Execessive Fines argument in court — but that argument ultimately does not prevail.

Gorsuch and Kavanaugh, by contrast, have no qualms about their own power. There is a question before the Court, they are certain that they know the answer, so damn the torpedoes!

Roberts approaches his job as a conservative who still feels the sting of cases like Roe v. Wade, and fears that judicial power may again be turned against his values. Gorsuch and Kavanaugh approach their job as conservatives who’ve never had to fear judicial power — they’ve watched the courts more further and further to the right with each passing year.

In the end, that could lead to the younger conservatives partnering with liberals in criminal justice cases. It may eventually even lead to one or both of them deciding that someone like Mr. Timbs cannot have their car taken away for a minor crime.

Outside of the criminal justice context, however, Gorsuch and Kavanaugh’s comfort with judicial power will give liberals heartburn. Roberts will, on occasion, deny conservative litigants a victory because he fears they are asking the courts to overrule democracy — as he did when he voted to save much of the Affordable Care Act. Gorsuch and Kavanaugh, by contrast, are much less likely to show such qualms.


Source: thinkprogress