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: 3, Insightful) by Runaway1956 on Friday March 17 2017, @01:29PM (10 children)
All that is required to make your robbery legal, is a badge, and the blessing of some old bastard wearing black robes.
(Score: 1, Informative) by Anonymous Coward on Friday March 17 2017, @01:39PM (5 children)
If you build your society with nearly religious reverence for an organization that is founded on violent imposition, then what you will get is violent imposition. I don't understand why people act surprised when the government does what a government is designed to do: Take your resources through dictate rather than well founded agreement.
(Score: 5, Interesting) by Anonymous Coward on Friday March 17 2017, @02:12PM (4 children)
It's because people like Runaway worship authoritarianism. I just pick on him because he commented, and it just so happens he's on the side of liberty today. There are many, many like him. Men are not angels. No agreement in the world is going to stop them from using violent force to take what is rightfully yours. Maybe you're homosexual and tomorrow he'll believe that LiGBuTts--or whatever term he's using to dehumanize you--do not, in the judgement of his authoritarian leader, have rightful possession of what you do rightfully possess according to the contracts you and he entered voluntarily.
That is why contract enforcement is a natural monopoly that we call "government." Government is the contract enforcer we nominate to be the most powerful warlord, because we hope we can keep that warlord in check by fording it to use due process. In cases such as this one, due process has broken down. All is not lost. At a fundamental level, this warlord exists only in such a way that we bless it to exist. It's up to us to vote in a better warlord.
(Score: 1, Interesting) by Anonymous Coward on Friday March 17 2017, @02:46PM (3 children)
You know, the words that you use ("warlord", really?) and the way that you use them, it should be no surprise to you why people just tune you out. "Oh, he's one of THOSE guys." You think you're the most insightful and smartest guy in the room, but everyone else sees you as just a reactionary babbler.
(Score: 0, Disagree) by Anonymous Coward on Friday March 17 2017, @03:48PM
That must be why I have an informative mod and you don't.
Yes. Warlord. Really. Men are not angels. Men are warlords and soldiers.
(Score: 2) by mhajicek on Friday March 17 2017, @03:54PM
AC is right. All governments rule by force and the threat thereof, and usually gain their initial power through war.
The spacelike surfaces of time foliations can have a cusp at the surface of discontinuity. - P. Hajicek
(Score: 2) by DeathMonkey on Saturday March 18 2017, @07:16AM
What is a warlord? Someone with a local monopoly on the use of force.
(Score: 2, Informative) by ikanreed on Friday March 17 2017, @03:13PM (3 children)
*In some states.
The problem with civil forfeiture is purely a matter of standards of evidence. Any state where the rules for retention are "preponderance of evidence" or laxer(some, like Alabama, only require primae facie evidence of wrong doing), you're right, it's basically completely arbitrary.
I have all sorts of gripes about my state's government, but at least our laws encode asset forfeiture to the state to criminal standards(i.e. the classic "Beyond a reasonable doubt").
So, like a great many things, it's the details that make the injustice.
(Score: 2) by Whoever on Friday March 17 2017, @03:16PM (2 children)
No, the problem is that the property is treated as its own legal entity, which the owner has no rights over.
(Score: 1, Insightful) by ikanreed on Friday March 17 2017, @03:22PM (1 child)
That's not the actual problem of asset forfeiture at all. That's a popular internet metaphor, but none of the legal basis takes that framing at all. The laws aren't written that way. The legal rulings aren't written that way. The police reports aren't written that way.
Please don't get a law degree from Google-U, or you'll start believing things like writing your name in ALLCAPS refers to a separate legal entity.
(Score: 5, Informative) by AthanasiusKircher on Friday March 17 2017, @05:19PM
That's not the actual problem of asset forfeiture at all. That's a popular internet metaphor, but none of the legal basis takes that framing at all. The laws aren't written that way. The legal rulings aren't written that way. The police reports aren't written that way.
Hmm... well, I could cite actual statutes, but perhaps the U.S. Department of Justice [justice.gov] will do for an explanation. As it explains at that link, criminal forfeiture is an action brought against a person who committed a crime. Civil forfeiture (which is the subject of the current story) is, I quote:
Civil judicial forfeiture is an in rem (against the property) action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary.
You'll note the "in rem" phrasing from Justice Thomas as quoted in the summary -- he's talking about cases brought against property. You're apparently talking about criminal proceedings in your state. That's great (and every state, as you note, is different), but it's not what we're talking about here.
Please don't get a law degree from Google-U, or you'll start believing things like writing your name in ALLCAPS refers to a separate legal entity.
GP's phrasing may be a bit imprecise, but there's no reason for your over-the-top berating. He's basically accurate in the sense addressed directly in the summary: because these civil cases are framed legally against the property (rather than a person), the legal standards are often much more loose for a seizure than in criminal forfeiture. Yes, it's a legal fiction of sorts, but it's a legal fiction that works in favor of the prosecution procedurally.
(Score: 1, Interesting) by Anonymous Coward on Friday March 17 2017, @02:07PM (9 children)
The knock on Thomas for a very long time was that he wasn't much of an original thinker and that he largely stayed in the background and concurred with whatever position Scalia took. It will be interesting to see if his positions change over the next several years, or whether it has always been the case that he and Scalia really were of the same mind.
(Score: 4, Interesting) by AthanasiusKircher on Friday March 17 2017, @04:12PM (8 children)
The knock on Thomas for a very long time was that he wasn't much of an original thinker and that he largely stayed in the background and concurred with whatever position Scalia took.
I'm no fan of most of Thomas's views, but that was only nonsense spun out of leftist media, who sought from the beginning to portray Thomas as unqualified for the job (if not an outright "Uncle Tom"; seriously if you missed it, we've even had members of Congress using that term publicly to apply to him).
People really
It's also a myth propagated by those who want to portray Thomas's silence in oral arguments as some sort of proof that he doesn't know or doesn't care what he's doing. Those people don't know anything about SCOTUS procedure or appellate courts in general, where most of the "work" is done behind closed doors in reading literally hundreds of pages of documents per case. The few minutes of oral argument are basically a last-minute opportunity for each side to highlight the most salient facts, and for the justices to ask some pointed questions. Years ago, the court was a lot less active and let lawyers make their case; Thomas has publicly stated on numerous occasions that he wished his fellow justices were tone it down a bit more and let the lawyers talk.
If you have any doubt of Thomas's intellect or that he is "of his own mind," I strongly encourage you to watch any of the many public interviews he's given over they years or simply read his opinions.
In reality, Thomas is one of the most frequent justices to offer his own concurring or dissenting opinion (even if brief) which generally states his own legal rationale for coming to his conclusion. Frankly, some of those views are so far off the edge of the legal spectrum of "mainstream" views (and yes, I'd count Scalia within the "mainstream" for the most part) that it's positively shocking. Scalia was known for originalism, but he also believed in stare decisis to a point; i.e., if law has been settled for decades, we'd need a good reason to overturn even a bad precedent. Thomas, on the other hand, would be quite happy to take American jurisprudence back in time and overturn 150-year-old precedents if necessary to restore his originalist positions.
It will be interesting to see if his positions change over the next several years
People really underestimate Thomas's influence. He has single-handedly taken fringe legal positions that haven't been viable for a century and returned them to debate in some of his SCOTUS opinions. People just talked about Scalia more because he was an entertaining writer and made a "good show" which the media could easily excerpt soundbites from. It's a lot harder to cover the systematic attempts to dismantle our entire modern jurisprudence in a 3-minute news segment, so Thomas never gets as much attention.
(Score: 3, Interesting) by AthanasiusKircher on Friday March 17 2017, @04:23PM
By the way, if anyone doubts what I said, here are a couple [politico.com] articles [usatoday.com] from the past year talking about the problems with the common myths around Thomas.
(Score: 2) by bob_super on Friday March 17 2017, @05:16PM (4 children)
My main issue with Justice Thomas is that his vote is so predictable.
If there is a conservative way to view of a case, he will always* vote for that view, pretty much regardless of the other factors involved. I can't name a single high-profile case in which his vote wasn't obvious as soon as the court decided to get involved.
To me, that doesn't make him a fair judge deciding on law and facts.
.
*: I'll admit that I have missed some low-profile case where he might have done otherwise.
(Score: 3, Informative) by AthanasiusKircher on Friday March 17 2017, @05:34PM
While it's a few years out of date, I'd suggest this article [slate.com] for some examples of where Thomas sided with liberals. Stats and breakdowns for rulings are easily found on SCOTUSblog too, so you can look up the other weird alliances between Thomas and some liberal justices.
Basically, Thomas is rather kooky and adheres so strongly to certain principles that he sometimes ends up on the "liberal" side of a case. Of course, part of the problem is the one-dimensional political spectrum metaphor -- in reality, there are many possible positions and a lot of inconsistency in the stereotypical "conservative" and "liberal" positions. Thomas is definitely a bit of a wildcard in some cases, though not necessarily because he's "liberal" in some areas -- he's generally so conservative in some sort of wacky way that he ends up swapping sides. (There are a couple high-profile cases where Thomas actually has gone with the liberals for more "stereotypically liberal" reasons -- the most prominent one I can think of was the cross-burning case from the early 2000s, where Thomas basically viewed cross burning as a form of "hate speech" that could be outlawed, though he didn't use that term. But you're right that those sort of cases for him are rare.)
(Score: 0) by Anonymous Coward on Friday March 17 2017, @06:39PM
You liberals just hate him because he is black.
Well that and him not acting the way he is "supposed to" act.
(Score: 2) by Kromagv0 on Friday March 17 2017, @08:40PM (1 child)
My main issue with Justice Thomas is that his vote is so predictable.
If there is a conservative way to view of a case, he will always* vote for that view, pretty much regardless of the other factors involved.
I hope you at least apply the other side of that coin to other justices. The majority of the justices are like that but Justice Thomas appears be the strongest example on the right but it looks like Justice Sotomayor [wikipedia.org] would be a pretty good example on the other side.
T-Shirts and bumper stickers [zazzle.com] to offend someone
(Score: 2) by bob_super on Friday March 17 2017, @09:16PM
Good point!
It is a problem of perception indeed, where it's a lot easier to rationalize someone making the decisions you approve of.
I do have more examples in my head of Justice Sotomayor (or the other liberal-minded) siding with the conservative side, which I usually can put on the strict interpretation of the texts trumping my modern tolerant biases, while some of the most "conservatives be conserving" votes embodied by Justice Thomas feel more contrived or out-of-touch.
I'd honestly have to make a rigorous list to check whether selective memory in a factor.
Trivialize the positive, never forget the outrageous! (is that FN's slogan, or my wife's?)
(Score: 0) by Anonymous Coward on Friday March 17 2017, @06:03PM (1 child)
What is your opinion on judges like Thomas and Scalia thinking or saying they are "originalists"? Do you think they really think of themselves that way? Because it is impossible to consistently hold and apply those views 200+ years later. Scalia was certainly not shy to go against his originalist objections when it suited him, for instance in his arguing GWB's equal protection rights were being denied in the 2000 election.
In this Thomas opinion he has a nice section where he points out that civil forfeiture was practiced by the founding fathers, then goes on to make the argument how times and circumstances have changed and how it shouldn't be applied so easily these days. To me, that sounds very un-originalist (and reasonable). Playing the originalist card in an argument always struck me as the lazy way out; "instead of having to research and write up a long and compelling argument, I will just claim 'original intent' and go hit Happy Hour."
(Score: 2) by NewNic on Friday March 17 2017, @06:31PM
Please ask any one of these originalists where the word "affects" appears in the Commerce Clause.
lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory
(Score: 2, Informative) by Anonymous Coward on Friday March 17 2017, @02:31PM (3 children)
Really people, the best background info on SCOTUS issues is the SCOTUSblog [scotusblog.com]. It should be obligatory to include relevant links from that site in any article that summarizes a case.
The case [scotusblog.com].
Thomas's opinion [scotusblog.com].
And a brief blog summary [scotusblog.com]:
(Score: 0) by Anonymous Coward on Friday March 17 2017, @02:42PM (2 children)
If you REALLY want to understand where modern civil forfeiture comes from, you should read Thomas' opinion. It is very clear and well written on what the legal basis is, and questions how firmly that basis really is.
(Score: 2) by ikanreed on Friday March 17 2017, @03:17PM (1 child)
There are some sentences one never expects to read. And I'm gonna level with you: "[Thomas' opinion] is very clear and well written on what the legal basis is, and questions how firmly that basis really is." definitely falls into that category for me.
I guess he's now free from the icy grip of the "Always concur with whatever Scalia wrote" brain worms now.
(Score: 2) by AthanasiusKircher on Friday March 17 2017, @04:15PM
I guess he's now free from the icy grip of the "Always concur with whatever Scalia wrote" brain worms now.
I've already written a more thorough response to this myth above, but let me also say that it would be helpful to check out the SCOTUSblog stats over the past decade and see the amount of agreement between Scalia and Thomas. While it's high, actually (IIRC) the liberal justices frequently have greater concurrence numbers in most years than Scalia/Thomas. And Thomas frequently authors his own opinions with separate reasoning, even when concurring with Scalia.
(Score: 2) by sjames on Friday March 17 2017, @02:49PM (12 children)
It's a shame the SC was able to slither out of ruling on this. It is categorically such an obvious wrong that one must question if any participant should ever be allowed to work in law enforcement (or other position of authority) again.
(Score: 2, Informative) by Anonymous Coward on Friday March 17 2017, @03:41PM (11 children)
There's no slithering. It is all procedural. The petitioner was raising an issue for the first time in the SC when it should have been raised in a lower court for consideration:
(Score: 2) by AthanasiusKircher on Friday March 17 2017, @04:31PM (10 children)
There's no slithering. It is all procedural.
Indeed. It's really unfortunate that this couldn't be heard before SCOTUS, and civil forfeiture cases are notoriously difficult to litigate and appeal due to the convoluted way they are often framed (often "prosecuting" a piece of property or even a sum of money as the "defendant").
On the other hand, SCOTUS and appellate courts in general can only grant appeals when they adhere to legal procedure, and there are all sorts of good reasons for these rules in most cases.
(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.