Civil Forfeiture and the Sotomayor-Gorsuch Team

Forty-two thousand dollars. That is the value of Tyson Timbs’ Land Rover SUV, which police confiscated when he was charged with selling heroin to undercover officers. The problem? The maximum fine for his offense is $10,000, less than one fourth of that sum. To seize the vehicle, law enforcement relied on the legal process commonly known as civil asset forfeiture—or, less favorably, legalized theft. While the Indiana courts upheld the action, the Supreme Court may be ready to put a stop to it, led by a seemingly unusual team: Justices Sonia Sotomayor and Neil Gorsuch.

Civil forfeiture allows prosecutors to seize property and funds in connection to crimes and, in most states, put the majority of that value back into law enforcement. Besides creating dubious incentives to seize first and ask questions later, civil forfeiture is difficult to fight when it is abused. Since most sums involved are relatively small—in contrast to the practice’s intended function as a weapon against large drug operations—it is rarely worth owner’s time and money to fight back through the justice system. Timbs v. Indiana represents the first time a civil forfeiture case has made it to the highest court, and there is reason to believe the alliance forming against it may be enough to abolish the practice once and for all. The case serves as a timely example of the ideological diversity of Supreme Court justices and how it leads to greater cooperation on the bench than many would think.

Timbs v. Indiana would not be the first time Sotomayor and Gorsuch have worked together on criminal justice reform. They recently joined in two dissents, both penned by Gorsuch, over the Court’s refusal to hear cases concerning the correct application of the Sixth Amendment. They argued that the right to a jury should extend not only to defendants in determining their trial verdicts, but also to those already convicted in determining the restitution they must pay to their victims. In a second opinion, they suggested that a forensic analyst counts as an accusing witness under the confrontation clause of the amendment when the evidence they produce is essential to the prosecution’s case; as such, defendants have a right to face forensic analysts in trial and perform cross-examination.

While these cases were never heard in the Supreme Court, Timbs v. Indiana and another case currently being deliberated, Gundy v. United States, may become the pair’s first major wins. In the oral arguments for Gundy v. United States, Sotomayor and Gorsuch seemed to be joined by Justice Ruth Bader Ginsburg in finding that the delegation of broad quasi-legislative power to the attorney general is unconstitutional. As for Timbs v. Indiana, Justice Clarence Thomas has assailed civil forfeiture in the past and seems likely to vote against it. The justices also have precedent on their side: Austin v. United States established that property is included in the application of the excessive fines clause and almost the entirety of the rest of the Bill of Rights has already been applied to the states through the Fourteenth Amendment.

Despite the public’s polarized view of the Supreme Court, cooperation like this from Sotomayor and Gorsuch is fairly common. Since 2000, 36 percent of the Court’s decisions have been unanimous, making that the single most probable outcome. 51 percent received support from at least seven of the nine justices and 80 percent of all votes were cast in favor of the majority opinion. Five-to-four decisions comprise only 19 percent of cases, and they are not always along perceived ideological battle lines. The four justices that comprise the Court’s “liberal bloc” have been joined by Chief Justice John Roberts to decide that warrants are required to acquire old phone records; that cities may sue banks over predatory lending practices; and that racial bias among jury members is enough to overturn their death penalty decision.

Some would cite the Supreme Court’s increasing refusal rates to argue that consensus has been high in recent years only because the Court has refused to hear the most politically controversial cases. While this may have been the case briefly during the 2016-2017 term, when a 4-4 split was possible, the increase in the number of declined cases is actually a symptom of a larger trend. The number of cases filed has skyrocketed in recent years, but the time the Court has to hear, deliberate and decide on cases has not. The discrepancy between the quantity of cases and time allotted to hear arguments leaves the Supreme Court with no choice but to turn down more cases of all types, controversial or otherwise. Timbs v. Indiana is a prime example of a momentous case with immediate national consequences that the Court will decide on in the coming months.

If cooperation is common, why do people perceive such stark divisions within the Supreme Court? Divisions in the legislative and executive branches seem to have spilled over into the public’s perception of the Court, whether or not that perception is fair or accurate. Confidence in the Supreme Court as an institution, as measured by Gallup, has become highly correlated to a respondent’s political party and the their opinion of the current administration: Democrats have lower confidence in the courts under Republican presidents and vice versa. The Senate confirmation process for justices, once mainly a formality to ensure a nominee’s competence, is now an ideological battleground with sharp partisan distinctions among the questioning senators. The process also receives more biased media coverage than ever before, deepening these distinctions among constituents.

The increasing politicization of the Supreme Court could have worrisome effects on its efficacy as an institution. As Justice Elena Kagan noted in 2018, the Court’s legitimacy relies on its ability to remain “above the fray” of the political branches and, maybe more importantly, to be recognized by the public as such. However, the Supreme Court’s social capital is in jeopardy. Confidence levels in the Court have been steadily decreasing since the 1980s, following a similar decline in confidence in Congress and the presidency. Under the current administration, only 37 percent of Americans report high confidence in the Supreme Court—even prior to the heated political rhetoric of Justice Brett Kavanaugh’s confirmation hearings. While these confidence levels still outstrip that of Congress and the president, the Court’s legitimacy may be headed in the same direction.

The recent cooperation between Justices Sotomayor and Gorsuch, however, should be a cautionary tale for applying the partisan norms of Congress and the presidency to the judicial branch. Justices have their own philosophies that are not necessarily tied to any one political ideology, including that of the president who appointed them. It is imperative to the continuing legitimacy of the Supreme Court that cases like Timbs v. Indiana, which demonstrate the Court’s capability to pursue justice through unity, receive the coverage and attention they deserve. Agreement between an ideologically diverse set of justices has the potential to end the discriminatory practice of civil asset forfeiture that, in 2014, took more money from people than burglars did. Even the most diehard partisans can find something to be optimistic about in that.

The image featured with this article is used under the Creative Commons Attribution-Share Alike 3.0 Unported License. The original was taken by 350z33 and can be found here.