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On March 30, 2016, the Supreme Court decided Luis v. U.S. In 2012, a grand jury indicted Luis for a variety of crimes relating to health care fraud. The government contended that she had fraudulently obtained some $45 million, and had spent all except $2 million of it. The government then initiated a civil proceeding to freeze Luis’ remaining assets, including those not traceable to the alleged fraud, to preserve them for payment of restitution and criminal penalties if she was convicted. Luis objected that the freeze violated her Sixth Amendment right to counsel, by precluding her from using her own untainted funds--those not connected with the alleged crime--to hire counsel to defend her in her criminal case. The district court acknowledged that Luis might be unable to hire counsel of her choice but rejected her Sixth Amendment claim, and the Eleventh Circuit affirmed that judgment on appeal.

By a vote of 5-3, the Supreme Court vacated the judgment of the 11th Circuit and remanded the case. No single rationale, however, attracted the votes of five justices. Writing for a plurality, Justice Breyer delivered an opinion arguing, based on the nature of competing considerations, relevant legal tradition, and practical concerns, that Luis had a Sixth Amendment right to use her own “innocent” property to pay a reasonable fee for the assistance of counsel. The opinion was joined by the Chief Justice and Justices Ginsburg and Sotomayor. Justice Thomas concurred in the judgment of the Court--thereby providing a fifth vote to vacate and remand--but he did not agree with the plurality’s balancing approach and instead rested strictly on the Sixth Amendment’s text and common-law backdrop. Justice Kennedy filed a dissenting opinion in which Justice Alito joined. Justice Kagan also filed a dissenting opinion.

To discuss the case, we have John Malcolm, who is Director of the Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation.

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