Wednesday, November 28, 2018
The United States Supreme Court heard oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and how this relates to forfeitures. The underlying facts in the case involve the forfeiture of a Land Rover. Recall that the Indiana Supreme Court rejected an excessive fines challenge under the Eighth Amendment concluding that "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."
As to the incorporation argument, some Justices seemed skeptical that there was any plausible argument that the Excessive Fines Clause should not be incorporated. Justice Gorsuch quickly intervened in the Indiana Solicitor General's argument: "can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states."
The Indiana Solicitor General did not concede this point, even after being pressed. Instead, the Indiana Solicitor General argued that the question of incorporation — including the test of whether the right is so deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty as to be fundamental — rests on the articulation of the right as including forfeiture as the Court held in Austin v. United States (1993). Indeed, the Indiana Solicitor General suggested that the Court should overrule Austin.
The relationship between the incorporation of the right and the scope of the right permeated the argument. As Justice Kagan observed to the Indiana Solicitor General, there were two questions:
And one question is incorporating the right, and the other question is the scope of the right to be incorporated.
And, really, what you're arguing is about the scope of the right.
On the other hand, Chief Justice Roberts, responding to the argument of Wesley Hottot on behalf of the petitioner Tyson Timbs, stated that the collapse of the two questions was to ask the Court to "buy a pig in a poke," to just hold that the right is incorporated and later figure out what it means.
In his rebuttal, Mr. Hottot argued that the case was about "constitutional housekeeping," adding that while the Court had "remarked" five times over the last 30 years that the "freedom from excessive economic sanctions should be applied to the states," it had never explicitly so held.
If the oral argument is any indication, the Court seems poised to rule that the Excessive Fines Clause is incorporated through the Fourteenth Amendment's Due Process Clause.