The B Team: Interesting opinions that aren't the political headlines of the day.

[SuingToGetAMessageBoard? 3861]

SCOTUS said 9-0 that states are subject to the excessive fines clause of the 8th amendment.  

 

https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

 

State seized a $42k Land Rover because of a drug conviction, claiming it was used to transport heroin.  Civil forfeiture.  The fine was actually $1,000.  The statutory max was $10,000.  The state wanted the car to cover the $1000 fine, the trial court said "not sure if srs."  The Indiana Supreme Court said the seizure was fine.  

 

It was interesting to me because despite Clarence Thomas's other faults, he has long railed against civil forfeiture.   It's the perfect thing for him because it is historically so different than what it is now.  It used to be things like seizing a pirate ship from pirates, where the asset was literally the vehicle for committing the crime.  Now it is "the drug was once in that car, that is totally the same as a pirate ship."

 

So I look and sure enough he files a concurrence.  I flip to it and he says literally nothing about civil forfeiture.  Dude!  All your dissents are being validated!  Flex a little!  Instead, he just rails on the fact that it is the substantive due process clause that is being invoked instead of the privileges and immunities clause.

[High Plains Drifter 10976]

Sounds like the tide is starting to turn on the civil forfeiture deal.

Too bad for Cops in MRAPS. Good for the rest of us.

[bernorange 8348]

Look forward to some analysis of the decision with respect to issues raised in earlier discussion of the case:

https://www.surlyhorns.com/board/index.php?/topic/3503-civil-asset-forfeiture-meta-thread/&do=findComment&comment=825593

 

[tucker 238]

How are local cops going to subside their Rambo fantasy now? 

[SuingToGetAMessageBoard? 3861]

2 hours ago, SuingToGetAMessageBoard? said:

SCOTUS said 9-0 that states are subject to the excessive fines clause of the 8th amendment.  

 

https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

 

State seized a $42k Land Rover because of a drug conviction, claiming it was used to transport heroin.  Civil forfeiture.  The fine was actually $1,000.  The statutory max was $10,000.  The state wanted the car to cover the $1000 fine, the trial court said "not sure if srs."  The Indiana Supreme Court said the seizure was fine.  

 

It was interesting to me because despite Clarence Thomas's other faults, he has long railed against civil forfeiture.   It's the perfect thing for him because it is historically so different than what it is now.  It used to be things like seizing a pirate ship from pirates, where the asset was literally the vehicle for committing the crime.  Now it is "the drug was once in that car, that is totally the same as a pirate ship."

 

So I look and sure enough he files a concurrence.  I flip to it and he says literally nothing about civil forfeiture.  Dude!  All your dissents are being validated!  Flex a little!  Instead, he just rails on the fact that it is the substantive due process clause that is being invoked instead of the privileges and immunities clause.

Fallout from Thomas's stance (which is embraced by Gorsuch) in this concurrence is that if P&I clause is the correct way to bind states to amendments, they are much narrower because P&I only applies to citizens as opposed to substantive due process (persons).   Read the thread.  Pretty interesting implications, including for Citizens United at the state level.

 

 

[SuingToGetAMessageBoard? 3861]

Roberts sides with the left to say you can’t execute someone that has no understanding of why he is being put to death. 

 

https://www.supremecourt.gov/opinions/18pdf/17-7505_2d9g.pdf

 

I read the dissents and they are outraged that the petitioner massaged his position a bit and it wasn’t what they originally granted cert on. 5-3.  It makes you wonder if they would have dissented if there wasn’t already 5 votes.  Would they really have executed a guy that was RIGHT based on the procedural issue?  Mercy. 

 

Also, Roberts is the best Justice. I’m not convinced any of the other 8 have any doubt how they are going to vote the second they hear the issue.  “Should we execute this guy?” “Yes yes yes yes no no no no” plus one “lets listen to the argument and apply the law.”

[Nivek 16858]

How are local cops going to subside their Rambo fantasy now? 

Threatening moms with cps.

[Anastasis 23394]

On 2/20/2019 at 12:09 PM, SuingToGetAMessageBoard? said:

Fallout from Thomas's stance (which is embraced by Gorsuch) in this concurrence is that if P&I clause is the correct way to bind states to amendments, they are much narrower because P&I only applies to citizens as opposed to substantive due process (persons).   Read the thread.  Pretty interesting implications, including for Citizens United at the state level.

 

 

 

Beer hat boy's originalist cred in question? 

 

 

 

https://reason.com/blog/2019/02/25/brett-kavanaugh-flunks-his-first-test-as

Brett Kavanaugh Flunks His First Test as an Originalist

Unlike Thomas and Gorsuch, Kavanaugh stayed mum on originalism in a major constitutional case.

Damon Root|Feb. 25, 2019 9:15 am

C-SPAN

 

In his 2018 confirmation hearings before the Senate Judiciary Committee, Supreme Court nominee Brett Kavanaugh was asked by Sen. Mike Lee (R–Utah) whether or not he considered himself to be an originalist. "Originalism refers to basically textualism applied in the constitutional sphere, with an eye toward identifying the original public meaning of the constitutional text at issue," Lee observed. So, "for our purposes today," Lee asked the nominee, "you're an originalist?" "That's correct," Kavanaugh promptly replied.

Many fans of originalism were no doubt heartened by that answer. Unfortunately for them, Kavanaugh just flunked his first big test as an originalist on the Supreme Court.

The test came last week in the case of Timbs v. Indiana. The matter arose in 2013 when a man named Tyson Timbs was arrested on drug charges and sentenced to one year on home detention and five years on probation. A few months after his arrest, the state of Indiana also moved to seize Timbs' brand new Land Rover LR2, a vehicle worth around $40,000. But a state trial court rejected that civil asset forfeiture on the grounds that it would be "grossly disproportionate to the gravity of [Timbs'] offense" and therefore in violation of the Eighth Amendment to the U.S. Constitution, which forbids the imposition of "excessive fines."

 

The Indiana Supreme Court later reversed that judgment. "We conclude the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment," the state's high court said.

The issue before the U.S. Supreme Court in Timbs v. Indiana, therefore, was whether or not the Excessive Fines Clause should bind the states just as it binds the federal government. Since the late 19th century, the Supreme Court has been applying—or incorporating—the various provisions contained in the Bill of Rights against the states via the 14th Amendment, which says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." The issue in Timbs, in other words, boiled down to this: if the Free Speech Clause of the First Amendment applies against the states (it does), then the Excessive Fines Clause of the Eighth Amendment deserves the same treatment.

The Supreme Court agreed with that assessment and ruled unanimously in favor of Tyson Timbs, holding that the Excessive Fines Clause does indeed apply against the states.

But the Court was not unanimous in its reasoning. The majority opinion, written by Justice Ruth Bader Ginsburg and joined by Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh, held that the Excessive Fines Clause is "incorporated by the Due Process Clause of the Fourteenth Amendment."

Writing separately, Justice Clarence Thomas explained that while he agreed that the ban on excessive fines should be applied against the states, he "cannot agree," as a matter of originalism, "with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment's Due Process Clause to encompass a substantive right that has nothing to do with 'process," Thomas wrote, "I would hold that the right to be free from excessive fines is one of the 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment."

This is not a new position from Thomas. In the 2010 case of McDonald v. Chicago, which asked whether the Second Amendment applied against the states, Thomas spelled out his originalist interpretation of the Privileges or Immunities Clause in a lengthy concurring opinion. "I believe the original meaning of the Fourteenth Amendment offers a superior alternative," Thomas wrote, "and that a return to that meaning would allow this Court to enforce the rights that the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed." It is no surprise that Thomas re-upped that interpretation in Timbs.

One key difference from 2010 is that Thomas now has a bit of company on the bench. "As an original matter," Justice Neil Gorsuch wrote last week in his own solo Timbs concurrence, "I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment's Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause." But, because "nothing in this case turns on that question," Gorsuch continued, he said he was willing to go along with the majority's non-originalist holding this time around.

Thomas and Gorsuch are both self-avowed originalists, so it is fitting that they would either explain (Thomas) or at least acknowledge (Gorsuch) their heterodox views in a major constitutional case such as Timbs. For an originalist judge, it is often an uphill battle, and one of the best ways to gain ground in the war of ideas is by writing a persuasive opinion, typically penned in concurrence or dissent. How else are you going to change minds and set the foundation for winning future cases?

Which brings us back to Brett Kavanaugh. Where, you may be wondering, was the Court's newest self-described originalist in last week's Timbs legal wrangling? Did Kavanaugh also explain where he stands on the crucial debate over the original meaning of the 14th Amendment? Did he say whether or not he agrees with Thomas? Did he perhaps lay out a different originalist take of his own? Alas, Kavanaugh did none of those things. He did not bother to weigh in at all.

If Brett Kavanaugh is a committed originalist, you would never know it based on his complacent behavior in Timbs v. Indiana.

Edited February 28, 2019 by Anastasis

[SuingToGetAMessageBoard? 3861]

Supreme Court of Kansas says the Kansas Constitution guarantees right to abortion.

 

http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2019/20190426/114153.pdf

The Court says that the Kansas Constitution is even broader in the rights protected than the US Constitution.

Quote

This court has put these principles into practice on occasion and, after doing so, has interpreted a provision of the Kansas Constitution in a manner different from the United States Supreme Court's interpretation of a parallel provision of the United States Constitution. E.g., State v. McDaniel & Owens, 228 Kan. 172, 184-85, 612 P.2d 1231 (1980) (independently interpreting section 9 of the Kansas Constitution Bill of Rights in manner different from the Eighth Amendment to the United States Constitution). Significantly, in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), this court recognized section 1 of the Kansas Constitution Bill of Rights describes rights that are broader than and distinct from those in the Fourteenth Amendment.

***

Our analysis leads us to the conclusion that section 1 of the Kansas Constitution Bill of Rights acknowledges rights that are distinct from and broader than the United States Constitution and that our framers intended these rights to be judicially protected against governmental action that does not meet constitutional standards. Among the rights is the right of personal autonomy. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although the Doctors, the lower courts here, and various decisions from this court have tended to lump sections 1 and 2 together, we base our decision on section 1 alone because we find it sufficiently protects the rights at stake.

***

A final and notable language distinction between section 1 and the Fourteenth Amendment arises from another phrase found in the Amendment but not in section 1: "without due process of law." In other words, the text of section 1 demonstrates an emphasis on substantive rights—not procedural rights. In contrast, the Fourteenth Amendment's use of "the term 'due process' seem to speak of procedural regularity." Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 272 (1985). Thus, section 1's focus on substantive rights removes from our calculus one of the criticisms of Roe and other decisions of the United States Supreme Court relying on substantive due process rights under the Fourteenth Amendment. See Roe, 410 U.S. at 173 (Rehnquist, J., dissenting).

 

[SuingToGetAMessageBoard? 3861]

Clarence Thomas spills a ton of ink tying abortion to eugenics, cites Freakonomics.

 

https://www.supremecourt.gov/orders/courtorders/052819zor_2dq3.pdf

 

Quote

Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s. But because further percolation may assist our review of this issue of first impression, I join the Court in declining to take up the issue now.

Quote

Building on similar assumptions, eugenicist Lothrop Stoddard argued that the “prodigious birth-rate” of the nonwhite races was bringing the world to a racial tipping point. L. Stoddard, The Rising Tide of Color Against White World-Supremacy 8–9 (1920). Stoddard feared that without “artificial barriers,” the races “will increasingly mingle, and the inevitable result will be the supplanting or absorption of the higher by the lower types.” Id., at 302. Allowing the white race to be overtaken by inferior races, according to Stoddard, would be a tragedy of historic proportions:

“[T]hat would mean that the race obviously endowed with the greatest creative ability, the race which had achieved most in the past and which gave the richer promise for the future, had passed away, carrying with it to the grave those potencies upon which the realization of man’s highest hopes depends. A million years of human evolution might go uncrowned, and earth’s supreme life-product, man, might never fulfil his potential destiny. This is why we today face ‘The Crisis of the Ages.’” Id., at 304.

Quote

Some believe that the United States is already experiencing the eugenic effects of abortion. According to one economist, “Roe v. Wade help[ed] trigger, a generation later, the greatest crime drop in recorded history.” S. Levitt & S. Dubner, Freakonomics 6 (2005); see id., at 136–144 (elaborating on this theory). On this view, “it turns out that not all children are born equal” in terms of criminal propensity. Id., at 6. And legalized abortion meant that the children of “poor, unmarried, and teenage mothers” who were “much more likely than average to become criminals” “weren’t being born.” Ibid. (emphasis deleted). Whether accurate or not, these observations echo the views articulated by the eugenicists and by Sanger decades earlier: “Birth Control of itself . . . will make a better race” and tend “toward the elimination of the unfit.” Racial Betterment 11–12.

 

Which makes sense that the issue has fallen on the parties the way they have.  Rs are very concerned with making sure that non-whites become stronger and more numerous, and Ds spend all their time trying to make a white-only society.

[wildcat09 29237]

On 2/28/2019 at 8:08 AM, SuingToGetAMessageBoard? said:

Roberts sides with the left to say you can’t execute someone that has no understanding of why he is being put to death. 

 

https://www.supremecourt.gov/opinions/18pdf/17-7505_2d9g.pdf

 

I read the dissents and they are outraged that the petitioner massaged his position a bit and it wasn’t what they originally granted cert on. 5-3.  It makes you wonder if they would have dissented if there wasn’t already 5 votes.  Would they really have executed a guy that was RIGHT based on the procedural issue?  Mercy. 

 

Also, Roberts is the best Justice. I’m not convinced any of the other 8 have any doubt how they are going to vote the second they hear the issue.  “Should we execute this guy?” “Yes yes yes yes no no no no” plus one “lets listen to the argument and apply the law.”

This is just such a blinkered view of Roberts. There's a decent chance he helps strike down or effectively neuter Griswold before he's done.

[SuingToGetAMessageBoard? 3861]

SuperBatson!

Dude is tried six times for murder(s).  Awesome description to start the syllabus.

 

Quote

Petitioner Curtis Flowers has been tried six separate times for the murder of four employees of a Mississippi furniture store. Flowers is black; three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified black prospective jurors. In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against black prospective jurors, and the jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court reversed again, this time concluding that the State exercised its peremptory strikes on the basis of race in violation of Batson v. Kentucky, 476 U. S. 79. Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the State exercised 11 peremptory strikes—all against black prospective jurors. No available racial information exists about the prospective jurors in the fifth trial. At the sixth trial, the State exercised six peremptory strikes—five against black prospective jurors, allowing one black juror to be seated. Flowers again raised a Batson claim, but the trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes. The jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court affirmed. After this Court vacated that judgment and remanded in light of Foster v. Chatman, 578 U. S. ___, the Mississippi Supreme Court again upheld Flowers’ conviction in a divided 5-to-4 decision. Justice King dissented on the Batson issue and was joined by two other Justices.

Gosh, I wonder how they decided who to strike.  

 

Quote

(3) Disparate questioning can be probative of discriminatory intent. Miller-El v. Cockrell, 537 U. S. 322, 331–332, 344–345. Here, the State spent far more time questioning the black prospective jurors than the accepted white jurors—145 questions asked of 5 black prospective jurors and 12 questions asked of 11 white seated jurors. The record refutes the State’s explanation that it questioned black and white prospective jurors differently only because of differences in the jurors’ characteristics. Along with the historical evidence from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggest that the State was motivated in substantial part by a discriminatory intent. Pp. 23–26.

This is awesome. 

Prosecutor:  Turn over every stone with those black jurors.  We have to find some way to get them off the jury.  

Junior Associate: But sir, you're not going to ask anything of the white jurors?  

Prosecutor: This is Mississippi, son.  We know how they'll vote.

 

Thomas and Gorsuch dissented, seeing no racial discrimination here.  Thomas also wants to overturn Batson itself.    Dare I say . . . Uncle Thomas?  Gorsuch trying to figure out how to take the mantel of worst justice once Thomas is gone.

[TwiceHorn 31269]

But I was told that Brett Kavanaugh was the second coming of white Satan?

['stache 21772]

Thomas is such a complete fuck. I like how he completely ignores this fact: "in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court."

But of course, he is so determined to prove how color blind he is, he would overrule Batson altogether. Despicable.

[TwiceHorn 31269]

Well, given that he would overrule Batson, the first part is completely unsurprising.  He doesn't think racial bias in jury selection matters.

He's a strange, strange bird.

[wildcat09 29237]

Is there anyone in America that hates themselves as much as Clarence Thomas must hate himself for being black?

[troph 24562]

In...

[Gil Bang 25897]

Is there anyone in America that hates themselves as much as Clarence Thomas must hate himself for being black?

He drives around in an RV, so no.

[TwiceHorn 31269]

So, following on the 2017 decision that prohibition against registering "disparaging" trademarks (the mark at issue there was "Slants" as a band name) was violative of the First Amendment, today the Supremes ruled that the prohibition against "offensive or scandalous" trademarks ia similarly unconstitutional (the mark at issue is "Fuct" for clothing).

https://www.scotusblog.com/case-files/cases/iancu-v-brunetti/

Kind of interesting that these laws have been on the books since 1946 and have not been challenged until now.  The key to both holdings was that a trademark, or trademark registration, was not "commercial speech" entitled to less protection than expressive or content-laden speech.  I think it was mostly assumed that they were commercial speech.