This morning, the Supreme Court handed down its decision in Culley v. Marshall. By a vote of 6-3, the Court affirmed the judgment of the Eleventh Circuit. Justice Kavanaugh delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Barrett joined. Justice Gorsuch filed a concurring opinion joined by Justice Thomas. Justice Sotomayor wrote in dissent, joined by Justices Kagan and Jackson.
Per Justice Kavanaugh’s opinion for the Court:
When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitution requires a timely forfeiture hearing. The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court’s precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing. . . . Ultimately, we need not reweigh the competing due process arguments advanced by the parties because this Court’s decisions in United States v. $8,850, 461 U.S. 555 (1983), and United States v. Von Neumann, 474 U.S. 242 (1986), already resolved the issue. . . . As the Court stated in Von Neumann, a timely forfeiture hearing 'satisfies any due process right' with respect to a 'car' that has been seized for civil forfeiture. . . . The Due Process Clause does not require a separate preliminary hearing. . . . The absence of separate preliminary hearings in civil forfeiture proceedings—from the Founding until the late 20th century—is weighty evidence that due process does not require such hearings.
Notably, despite saying the precedent resolves the question before the Court, Justice Kavanaugh goes out of his way to review historical practice and conclude that “[t]he absence of separate preliminary hearings in civil forfeiture proceedings—from the Founding until the late 20th century—is weighty evidence that due process does not require such hearings” (emphasis added). One might query whether that historical inquiry proved important to attracting and retaining the votes of Justices Gorsuch and Thomas, who, in a joint concurrence, “agree[d] with the dissent that this case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.” The concurrence highlights the complexity of civil forfeiture history and suggests that further litigation is warranted to fully assess its legitimacy:
Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have “led to egregious and well-chronicled abuses”? Leonard, 580 U.S., at 1180 (statement of Thomas, J.). Perhaps it has something to do with the relative lack of power of those on whom the system preys. Perhaps government agencies’ increasing dependence on forfeiture as a source of revenue is an important piece of the puzzle. Cf. Calero-Toledo, 416 U.S., at 679 (indicating, over 50 years ago and before the rise of many modern innovations, that “self-interes[t]” did not motivate the forfeiture of the vessel at issue). But maybe, too, part of the reason lies closer to home. In this Nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule. Yes, some exceptions exist. But perhaps it is past time for this Court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions.
One might also consider whether and how the outcome of Culley fits into the narrative, raised most recently by Prof. Marc DeGirolami, that “tradition” (rather than originalism, strictly speaking) is the chief rubric for the current Court.
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