MARY REICHARD, HOST: It’s Monday morning, new work week, and the last full week before Christmas. Thanks for listening to The World and Everything in It. Today is the 17th of December, 2018. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher.
Last week the Supreme Court handed down a unanimous ruling. It’s the first for the newest justice, Brett Kavanaugh.
The question was whether a burglary conviction under state law qualifies as a violent felony under a federal law.
The federal statute at issue tacks on additional prison time to certain classes of offenders.
It’s called the Armed Career-Criminal Act, and it’s known by the acronym “ACCA.” It lengthens sentences for those who have three violent felony convictions, and they’re found illegally possessing a gun.
In this case, men convicted under ACCA argued their prior state convictions for burglary shouldn’t count. That’s because they’d burglarized not traditional homes, but mobile structures: something like a tent or a car used for for overnight lodging.
But as Justice Stephen Breyer wrote, a burglary is no less a burglary because it took place at a summer home in the winter.
REICHARD: Yeah, and the surprise to me was that a related case dealing with robbery was not included in this ruling. That may sound like hair-splitting, but I think it’s likely that the justices found unanimity only on this narrow issue.
EICHER: Let’s also talk about what the Supreme Court didn’t do last week. This one touched on Planned Parenthood, and the issue really alarmed some pro-lifers who worked hard on the Kavanaugh confirmation. The question is whether welfare recipients can sue a state that chooses not to fund abortion businesses with public dollars. And the court chose to sit that one out.
REICHARD: And that was the big surprise, that the court could muster only three votes to take this Planned Parenthood case. The three were, by seniority, Clarence Thomas, Samuel Alito, and Neil Gorsuch.
Not Kavanaugh, and not the chief justice, John Roberts.
Justice Thomas, in particular, was really chapped about it. He issued an opinion calling the failure to grant cert here, and this is a quote, “[an] abdication of judicial duty.”
So the big question is why.
And we can’t really know because neither Roberts nor Kavanaugh explained themselves.
What I can tell you is that the headlines saying the “Supreme Court sides with Planned Parenthood,” those are overblown. Obviously the case didn’t reach the merits. A refusal to take a case is not the same as ruling that taxpayer-funded abortion is OK.
That said, it is accurate to say it’s certainly a disappointment to pro-lifers. And it didn’t help that the pro-abortion Republican Senator Susan Collins said she felt vindicated in her support for Kavanaugh. But only the justices know for sure. And it may be that Kavanaugh and Roberts are waiting for a more factually useful case to come up before them.
But even that’s a guess.
EICHER: All right. Let’s move on to the two oral arguments you have today. First up, a case with a very unusual name, very specific. It’s called: Tyson Timbs and a 2012 Land Rover LR2 versus State of Indiana.
It seeks to answer a question that you’d think is already settled with a resounding yes: Does the 8th Amendment prohibit the government from imposing excessive bail, excessive fines, or cruel and unusual punishments?
But it’s a trick question, because the 8th Amendment prohibits the federal government from doing that.
What we don’t know is whether the prohibition of excessive fines applies to the states.
In legal parlance, whether that federal right is “incorporated” to the states.
REICHARD: That’s right. The facts here are pretty sad.
Tyson Timbs became addicted to pain pills and when he couldn’t get those anymore he turned to heroin.
Meantime, his father died and the proceeds of a life-insurance policy netted him $75,000. Timbs went out and bought himself a Land Rover for $42,000. The rest he spent on drugs, and then when that money ran out he started selling heroin out of his vehicle.
Eventually he got caught, and before he was prosecuted, he entered into a plea deal.
Now, the maximum fine for what Timbs had done was $10,000. Yet the state of Indiana seized his expensive Land Rover that’s worth four times that amount.
Timbs says that’s excessive and violates his Constitutional rights.
Indiana’s Supreme Court ruled against Timbs on the basis that the Supreme Court has never specified the states are subject to that Excessive Fines Clause.
Indiana’s Solicitor General, Thomas Fisher, faced an incredulous Justice Gorsuch. You’ll hear Gorsuch refer to an in rem forfeiture. In rem is lawyer-speak for property, which of course here refers to the Land Rover.
GORSUCH: Can we just get one thing off the table? We all agree that the excessive fines clause is incorporated against the states.
Whether this particular fine qualifies b/c it an in rem forfeiture, another question.
But can we at least get the theoretical question off the table whether you want to do it through the due process clause, look at history and tradition. Gosh, excessive fines, guarantees against them go back to Magna Carta in 1225, the English Bill of Rights, the Virginia Declaration of Rights. Pretty deep history…Can we at least agree on that?
FISHER: I have two responses to that …
GORSUCH: Well, I think a yes or no would probably be a good starting place (laughter)…
FISHER: You have to take into account the history and traditions of the right being claimed …that depends…
GORSUCH: Well, …I mean most of these incorporation cases took place in, like, the 1940s. And here we are in 2018, still litigating incorporation of the Bill of Rights. Really? Come on, General…
Lurking behind the scenes here is a wildly unpopular legal tool called “civil forfeiture.” Well, unpopular with the public, but quite popular with law enforcement, because it’s a way to generate revenue for them.
Civil forfeiture began as tool to dismantle organized crime, but it’s “evolved” to allow police to take cars, property, cash that they think might have been used in a crime. This, even when the owners aren’t arrested or charged with any crime, let alone involved in any organized criminal activity.
Fisher, again for Indiana, tried to parse the difference between forfeiting money and forfeiting things. As in, this case is against the Land Rover itself because it was used to sell drugs.
Justice Ruth Bader Ginsburg reminded Fisher of something else.
GINSBURG: Let’s remember that things don’t have rights or obligations in and of themselves. It’s people that have rights or obligations with respect to things.
But it wasn’t all roses for Timbs’s side. Justice Alito wanted to delve more deeply into that difference between things and time or money. Listen to this exchange with Timbs’ lawyer, Wesley Hottot.
ALITO: If we were to assume for the sake of argument that imprisonment for six years would not be an Eighth Amendment violation for this offense, what would that say about a fine of $42,000? Is it possible that six years’ imprisonment is not an Eighth Amendment violation, but a fine of $42,000 is an Eighth Amendment violation?
HOTTOT: Well, Your Honor, we’d have to know all of the circumstances of the case…
Hottot going on to say the one closest to the facts here, the trial judge, thought what happened to Timbs was disproportionate to the crime. But Chief Justice John Roberts took another tact:
ROBERTS: Well, does it make a difference — we’ve been talking about the value of the — the item. What if the person doing this, you know, was a multimillionaire? Forty-two thousand dollars doesn’t seem excessive to him. And yet if a person is impoverished, it is excessive? Does that matter?
HOTTOT: Magna Carta had the principle of salvo contenimento, the idea that you can’t take from a man so much that he would be destitute.
Overall, the justices definitely tilted in favor of Timbs. Perhaps this exchange between Justice Stephen Breyer and Indiana’s lawyer Fisher underscores that best.
BREYER: In your view an in rem civil forfeiture is not an excessive fine is that right?
FISHER: Yes, that is true.
BREYER: So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or special Ferrari or even jalopy? (laughter)…. and I just wonder what is it? is that permissible under the Constitution?
FISHER: To forfeit the Bugatti?
BREYER: Yea, and by the way, it was only 5 miles an hour above the speed limit.
FISHER: The answer’s yes, it is forfeitable. In rem forfeitures have always been with us and they’ve always been harsh.
The abuses of civil forfeiture are legion, and well-documented. And, refreshingly, Mr. Timbs has the backing of groups that fight each other on almost everything else: the ACLU agrees with the Goldwater Institute, the Southern Poverty Law Center’s far far left agrees with the conservative Foundation for Moral Law.
And they all back Timbs to get his Land Rover back.
I mean, just stop and savor that!
I’ll sneak one more oral argument in here and keep it short. It has to do with attorneys fees.
You know, lawyers do have to eat and without them I don’t have a job. So here goes.
A lawyer was able to win social security benefits for four clients who’d been denied them at first. Naturally, he wanted to be paid. Without getting into the weeds too much, the law permits a certain percentage of what the client receives in benefits to pay the lawyer. The percentage depends on whether the lawyer’s work was before an agency or before a court.
The justices have to decide whether those things should be considered separately or together, in the aggregate, to apply a percentage cap on what the lawyer can get.
The justices and the lawyers batted around different analyses on how to interpret the law. Here’s lawyer Amy Weil, appointed by the court to argue in favor of an aggregate cap:
KAVANAUGH: Congress used the phrase “in the aggregate” benefits, they use in the aggregate there and don’t use it here. Uh, do you have a —
WEIL: That is unfortunate. This is not the best written statute. (laughter) If it had been more clear, we certainly wouldn’t have been here.
If you listen regularly, you’ve heard the refrain often, about unclear laws. 4:19 More than a third of the House is made up of lawyers and almost half of the Senate, so, well, draw your own conclusions from that. And that is this week’s Legal Docket.