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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: 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.