Forecasting the Supreme Court’s final decision based on oral arguments is risky at best. The justices’ questions during the hour-long sessions don’t always reflect their actual views. Not all of court’s members actively participate in the back-and-forth deliberations. The justices’ minds can change as the final opinions are written. No Supreme Court decision is certain until it’s published and released to the public.
That said, it would be pretty astonishing if the justices did not rule in Timbs v. Indiana that the Eighth Amendment’s ban on excessive fines applies to state and local governments. Wednesday’s oral arguments saw broad, forceful agreement across ideological lines that the Constitution protects Americans from unjust fees and forfeitures. At times, the justices treated the outcome like a foregone conclusion.
The high court’s ruling could give Americans a new set of legal tools to fight back against excessive fines or confiscations of assets from state and local governments. It would come not a moment too soon. There’s a strong bipartisan consensus on the need to rein in civil-asset forfeiture, a practice by which police can deprive citizens of their cash and property without a criminal conviction: The potential for abuse is obvious.
Wednesday’s case is centered on Tyson Timbs, an Indiana man who became addicted to prescription painkillers after a foot injury. From there, he turned to heroin and other illegal drugs. After his father died in 2012, Timbs received $73,000 from a life-insurance policy. $42,000 of the money went towards a new Land Rover, which he happened to use when driving to pick up some of the drugs.
Undercover Indiana police officers eventually arrested Timbs for trying to buy less than four grams of heroin for $400. Timbs received a six-year suspended sentence for the crime, saving him from a stint behind bars, but the police tried to seize his Land Rover. Timbs challenged the seizure in court, arguing that the confiscation of a $42,000 vehicle for a few grams of heroin violated the Constitution’s ban on excessive fines. The Indiana Supreme Court disagreed, ruling that the U.S. Supreme Court had never held that the Excessive Fines Clause applies to state governments. Timbs then appealed to the U.S. Supreme Court to change that.
In their original form, the Bill of Rights only applied to the federal government: In other words, the federal government couldn’t restrict freedom of speech or right to bear arms, but the states could. Over the last century, however, the Supreme Court has used a legal doctrine known as selective incorporation to apply the Bill of Rights’ protections to state and local governments as well—amendment by amendment, clause by clause. The most recent incorporation came in 2010’s McDonald v. Chicago when the justices ruled that the Second Amendment right to individual gun ownership also bound state legislatures and city councils.
Indiana Solicitor General Thomas Fisher, who had the unenviable task of arguing for Indiana’s right to confiscate Land Rovers on Wednesday, only managed to utter two sentences before Justice Neil Gorsuch interrupted him. “General,” he asked, “can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states.” That assertion did not bode well for Indiana, since the question presented to the court for its consideration is literally “whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the states under the Fourteenth Amendment.”
It only got worse for the state from there. After briefly recounting the Anglo-American legal tradition’s long history of skepticism towards excessive fines, the justice pressed his point again. “Well, whatever the Excessive Fine Clause guarantees—we can argue, again, about its scope—but whatever it in fact is, it applies against the states, right?” Gorsuch asked. Indiana’s solicitor general declined to give a straight answer. “Well, again, that depends,” Fisher replied. “I mean,” Gorsuch answered, “most of the 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.”
Other justices chimed in. “Isn’t it just too late in the day to argue that any [part] of the Bill of Rights is not incorporated?” Justice Brett Kavanaugh asked Fisher. The court’s newest member had a point: The Excessive Fines Clause is one of only four provisions in the Bill of Rights not currently held against the states. Indiana took fire on its left flank as well. Justice Sonia Sotomayor implicitly compared seizures like the one against Timbs to the Star Chamber, a medieval English court that universally represents injustice in the American legal mind.
Not all of the justices struck disapproving notes. Chief Justice John Roberts seemed reluctant to incorporate the clause without more clarity about the standards that would be applied against states. He also signaled that he may not be open to tackling the underlying issue. “It’s no surprise that in rural Indiana that a person might drive somewhere to meet with someone,” Wesley Hottot, Timbs’s lawyer, told the justices at one point. “And that doesn’t make this vehicle somehow like a pirate ship that had been sailing the high seas.” Roberts seemed unpersuaded. “Well, that’s contrary to a lot of civil forfeiture law,” he replied.
A ruling in Timbs’s favor would not directly curb forfeitures, though it may set the stage for future decisions that would. “We’re not asking the Court to determine that this forfeiture was or was not excessive,” Hottot said. “We’re merely emphasizing that part of the purpose of the Fourteenth Amendment was to guarantee to all 330 million Americans a right to a defense under the excessive fines clause. Indiana denied [Timbs] that defense, and the Court should reverse and remand.” A ruling is expected by June.