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from the we-won't-hear-the-case,-but-if-we-could... dept.
The Washington Post has some analysis of a noteworthy Supreme Court non-decision.
In today's [March 6] Leonard v. Texas, Justice Clarence Thomas sharply criticizes civil forfeiture laws. The one-justice opinion discusses the Supreme Court's refusing to hear the case (a result Thomas agrees with, for procedural reasons mentioned in the last paragraph); but Thomas is sending a signal, I think, that at least one justice — and maybe more — will be sympathetic to such arguments in future cases.
From Justice Thomas' statement:
In rem proceedings often enable the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent (though some statutes, including the one here, provide for an innocent-owner defense). Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.
Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable.
[...] These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.
(Score: 2) by Immerman on Friday March 17 2017, @06:18PM (9 children)
It seems to me it would be really valuable for the Supreme Court to be able to simply step in and say "We believe this law/policy may be unconstitutional, and so are going to put the law itself on trial using court-appointed lawyers to dig into the details for both sides". Especially in the case of slippery things like civil asset forfeiture or mass surveillance, where the procedural details make it all but impossible for a citizen to prove that they have standing to bring such a lawsuit.
I'd be interested to hear arguments as to why that would be a bad idea.
(Score: 4, Insightful) by urza9814 on Friday March 17 2017, @08:36PM (6 children)
"Checks and balances"
They've been pretty thoroughly decimated lately, but they're still generally a good idea. Remember that Supreme Court decisions are law and that their role is not just to strike down unconstitutional laws but also to decide exactly what the existing laws mean. So what you propose would essentially move the full power of the 535 congresspeople down to a nine member oligarchy that can unilaterally pass any law they want and overrule any policy they want...and it's a life appointment, so a bad court could only be stopped by death or voluntary retirement.
As noted in the article, you generally need to prove standing (some effect of the law on you personally) to challenge a law in court. Which makes it hard for an *individual* to sue over asset forfeiture. Particularly due to the games they play about the property being the defendant, but I imagine that itself could be a constitutional question...even if they find against the property, they are still depriving you of YOUR property in doing so, which I'd expect could be challenged as an unlawful seizure. But it could easily be challenged by the government itself through a federal or state Attorney General, I don't see any way it could be claimed that they don't have standing. Unfortunately, they probably don't want to in this particular case...so in that case you either get a group like the ACLU to find a victim and help them challenge it, or you go pressure your legislators to clean up their own damn mess. You could also pressure the executive branch to simply stop enforcing it, but again, they like this law so they won't do that.
All three branches need to agree to get much of anything done. That's intentional. If the Executive doesn't want to stop screwing you, and the Legislative doesn't want to fix the law, and the Judicial doesn't want to take the case...you're just screwed. Turning one of those branches into a dictator in the hopes that they'll agree with you on one particular issue doesn't seem likely to improve that situation...
(Score: 0) by Anonymous Coward on Friday March 17 2017, @09:23PM
Yeah, I was going to say the exact same thing. The legislature really doesn't like it when the judiciary decides to legislate from the bench. Those checks and balances are there for a reason. I'm sure that, in time, a case on civil asset forfeiture will come before the court. May it come sooner rather than later.
There is the possibility of impeachment too, but that can also be a bit tricky.
(Score: 2) by Immerman on Friday March 17 2017, @09:24PM (3 children)
How could they pass a law? Laws can only be created by congress, and the potential for interpretation is limited - and could be made much less so if Congress knew the Supreme Court could immediately try to twist the words to mean something different.
What the Supreme Court could do is prevent a law from being implemented in the first place. And in most cases, sooner or later the law will end up in front of them anyway - being able to challenge it directly rather than waiting for someone with the wealth and determination to spend years or decades working their way up through the lower courts would let them strike down blatantly unconstitutional laws immediately, before widespread damage was done.
(Score: 2) by urza9814 on Monday March 20 2017, @04:43PM (2 children)
Well, I'll give you if we had made it that way from the start and congress had exercised extreme caution it might have worked. But I wasn't thinking that way, I was thinking if we made the change today with all existing laws in place. In which case, surely they could find some law or combination of laws or previous court ruling somewhere that sorta kinda sounds vaguely similar to what they want. Interpretation can go a LONG way. That's how we got corporate personhood. That's also how we got the war on drugs out of the commerce clause. They have no problem with arguments in the form of "The law is about X; X is affected by Y; and Y is caused by Z...therefore the law covers Z."
The problem is that the implementation matters. Take an overly broad reading of a law and you can probably make some argument that it's unconstitutional. Take an overly narrow reading and even the most tyrannical legislation could be found acceptable.
(Score: 2) by Immerman on Tuesday March 21 2017, @08:02PM (1 child)
So it seems to me that all of that is already true today, with the caveat that there has to be a lawsuit that gets appealed all the way to the Supreme Court before they get involved.
I don't see how giving them a premptive "unconstitutionality veto" over any law would make that any worse. Nor do I see any opportunity to expand the law without any particulars under consideration. Perhaps in the case of a law found "constitutionally acceptable" the court opinion could set the tone for it's interpretation, but that could be explicitly stated as not establishing precedent in this context.
Or, to reduce potential overreach even further, they could be prevented entirely from finding the law "constitutionally acceptable" at all - instead only being able to find it unconstitutional, or drop the case pending future litigation through normal channels.
(Score: 2) by urza9814 on Wednesday March 22 2017, @02:19PM
Right. So instead of one branch of government being able to change things all by themselves, someone else has to work with them. If we abuse notation a bit and consider "the people" to be the fourth branch of government, we could say you need two branches to agree on any issue to make a change. The court has immense power to resolve conflicts, with the restriction that *there must actually be a conflict first*. You really don't see the difference between "You can do whatever necessary to resolve disputes" and "You can do whatever necessary to rebuild the whole system however you want"?
(Score: 2) by sjames on Friday March 17 2017, @09:28PM
The problem is that standing tends to be rather narrowly interpreted these days and the DOJ (executive) is left way too free to avoid giving people standing by selectively dropping charges (or reversing actions) against any person with the wherewithal to push the matter up to the Supreme Court. They do that because they know damned well that their actions are unconstitutional and that nothing will happen to them as a result of their illegal activities.
(Score: 0, Offtopic) by khallow on Friday March 17 2017, @09:08PM (1 child)
It seems to me it would be really valuable for the Supreme Court to be able to simply step in and say "We believe this law/policy may be unconstitutional, and so are going to put the law itself on trial using court-appointed lawyers to dig into the details for both sides". Especially in the case of slippery things like civil asset forfeiture or mass surveillance, where the procedural details make it all but impossible for a citizen to prove that they have standing to bring such a lawsuit.
Well, there are several matters here that make that a problem. First, there's the matter of standing which you mention. In the cases where citizens have extreme difficulty to prove standing, why is the court going to fare better? What is the basis on which the court will interfere?
Second, there's the matter of overreach. If a court can interfere with any aspect of government (or even general society), then sooner or later someone will. An example of this sort of abuse is the New York state Attorney General. The office has frequently gone after US corporations because the two biggest stock exchanges reside in the state, meaning every corporation traded on those markets is to some extent beholden to New York state law. That led, for example, to the recent spectacle of Exxon-Mobile being brought into court on charges of misleading investors merely because they had conducted some inclusive research into global warming back in the 1980s which in turn was spun as an admission of guilt.
Third, there are a lot of potential cases out there (I believe the lower courts go through thousands of cases each year). The Supreme Court doesn't have the resources to pursue allegations willy nilly or to do the jobs of those many lower courts. The current process allows the Court to make decisions that are pretty effective and a good use of the court's time.
(Score: 3, Interesting) by Immerman on Friday March 17 2017, @09:41PM
I believe I clearly indicated that the idea is to give the Court the ability to ignore issues of standing altogether - there are no individuals involved at all, as accuser or defendant - it would be the law itself on trial for crimes against the constitution based on nothing more than judicial suspicion. Effectively granting the Court their own veto that they can deploy when they see the need. But as you say, they're busy, so I suspect they would have to be pretty seriously concerned about something to collectively decide to examine a law in the first place.
Similarly there would be no citizen allegations to officially consider, though they might well serve to bring a suspect law to their attention - it would simply be a mechanism by which the judges could collectively agree that some law is sufficiently likely to be unconstitutional that it's worth a preemptive examination rather than waiting for a suitable case to work its way up through the courts, and without any specific detail of a case that could sabotage the trial on a technicality. Only the law and the constitution need be considered.