Courthouse Steps Decision Teleforum: Timbs v. Indiana

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Thursday, February 21, 2019 during a live teleforum conference call held exclusively for Federalist Society members.

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Supreme Court decision handed down yesterday in Timbs v. Indiana. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today we are fortunate to have with us Vikrant Reddy, who is a Senior Research Fellow at the Charles Koch Institute. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Vikrant, the floor is yours.

 

Vikrant Reddy:  Thanks so much, Micah. I really appreciate it. My name is Vikrant Reddy, and I'm a Senior Fellow at the Charles Koch Institute. I just want to start by saying thank you to The Federalist Society for having me on for this teleforum today. And I especially want to thank John Malcolm, who's the head of the Criminal Law & Procedure Practice Group on which I serve.

 

Timbs v. Indiana is really one of the most fun cases of this entire term. It has two dimensions. The first is a constitutional law dimension that's kind of abstract and wonky. And the second is a criminal justice dimension that is a lot more practical, and it kind of gets into what the substantive meaning of this case is moving forward.

 

I'm going to start with the constitutional law part, and that begins with the doctrine of incorporation, which is probably something that many people on the call haven't even thought about since law school. For a brief refresher, remember that incorporation is just referring to the idea that there's certain individual rights that the federal government must respect but that must also be respected by the state governments. And we say that those rights are "incorporated", quote/unquote, against the states through the 14th Amendment.

 

We all remember that the original concerns about the Constitution were, essentially, that it was going to create this powerful and abusive federal government that would violate the individual rights, and the Framers were very concerned about that. But they were not necessarily so concerned about those kinds of abuses by the state governments. Those concerns come later after the passage of -- after the Civil War and the passage of the 14th Amendment. Bit by bit, the Court started incorporating a lot of rights that already existed against the federal government against the state governments. This is the doctrine of selective incorporation. Rather than just saying all at once all the rights, the Bill of Rights, are incorporated, the Court has kind of been doing it in a piecemeal fashion.

 

Now, one of the rights that has not, or before yesterday, had not been incorporated was a very particular clause in the Eighth Amendment. That's the one that says, "Excessive fines shall not be imposed." Because that had not been incorporated, the federal government had a limit on the kinds of fines they could asses against criminal defendants. But as a technical matter, the states really didn't. They could, in theory, levy a fine that was vastly disproportionate to the underlying crime.

 

That gets us to the particular facts in this case. And they involve a man named Tyson Timbs, who is a guy in Indiana who pleaded guilty to several drug trafficking related crimes. We don't have to get into all the details of that. They basically involved a small amount of heroin that he was trafficking in Indiana. If he had been sentenced to the absolute maximum under Indiana law, the most that he could have been fined was about $10,000. For what it's worth, he ended up being sentenced to home detention, probation, about $1,200 in costs and fees, things like that. But assuming that the court really threw the book at him, he could have been fined a maximum of $10,000.

 

During these proceedings, though, law enforcement seized and forfeited, through civil asset forfeiture, his Land Rover SUV. And the value of that vehicle was $42,000. That is over four times as much as what the absolute maximum fine could have been under Indiana law. So Mr. Timbs challenged this under the Eighth Amendment saying, you know, when you were levying a fine against me that is more than four times what the highest possible sentence could have been, you're violating the Eighth Amendment. And the state cannot do that. The trial court agreed with him. The appeals court agreed with him. The Indiana Supreme Court, however, said, "You know, technically, the U.S. Supreme Court has never actually incorporated that particular clause in the Eighth Amendment." And so the Supreme Court granted cert to answer that question, which the Indiana Supreme Court properly asked.

 

So the opinion yesterday was written by Justice Ginsburg, and it was unanimous. The Court determined that freedom from excessive fines is in fact a, quote/unquote, "fundamental right", and therefore it is incorporated against the states. It's an incredibly fun opinion to read if you like legal history. Justice Ginsburg cites Magna Carta. She cites Blackstone. She talks about the ways that the Stewart kings in England would levy excessive fines in order to fund their government, and how those kinds of concerns about the activities of the Stewart kings lead to these protections in the English Bill of Rights. She mentions the fact that in 1787 the constitutions of eight states—that was 70 percent of the U.S. population at that time—actually featured some kind of a protection against excessive fines. And, in fact, today all 50 states have got some kind of excessive fines protection in their constitution. And there're very good reasons for these protections.

 

And another really fun part of the opinion is that if you love and admire Justice Scalia's memory, there's some fantastic quotations from him that Ginsburg cites from an opinion that he wrote called Harmelin v. Michigan. Justice Scalia wrote at one point that fines may be "imposed in a measure out of accord with the penal goals of retribution and deterrence." And that's because "fines are a source of revenue", even though the other forms of punishment "cost a state money".

 

That's a really important point. You've got to be very careful looking at what states can do with fines because when they incarcerate you, do things like that, that actually costs the state money. But whenever the state chooses to punish you using fines, they're actually earning money. And as Scalia goes on to write in that opinion, "it makes sense to scrutinize government action more closely when the state stands to benefit." This is terrific language that really gets at our most basic concerns about government abuse, and Ginsburg drops all of this language into the Timbs opinion.

 

She also includes a really important line, I think, from an amicus brief that was filed by the ACLU. The ACLU noted that "perhaps because they are politically easier to impose than taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue." That's a really important point also. Some folks on the call may remember that after the awful incident in Ferguson a few years ago, DOJ commissioned a report which showed that more than 15 percent of the municipal revenue in the City of Ferguson came from various fines and fees. The people in that town were beginning to see law enforcement more as a tax collector than as peace officers. That probably had a lot to do with contributing to the unrest that was felt there and that is being felt in a lot of U.S. cities. You want police officers and law enforcement to be seen as officers of the peace, not to be seen as people who are simply there collecting revenue. That's a significant thing that you want to worry about, and that's the kind of policy concerns that drive making sure that you have constitutional protections against excessive fines.

 

So having said all of this, if this is so obvious that these protections exist in all 50 states, what's the problem? The problem is that Indiana made the argument that civil forfeitures are not technically fines, as we think of those underneath the Eighth Amendment. That's a whole different thing. Civil forfeiture, they say, is a law enforcement tactic; it's not a punitive measure. That argument simply didn't fly. The Court decided a case in 1993 called Austin v. United States where they said that, yes, civil forfeitures are, in fact, punitive, at least partially. And so they are covered by the Eighth Amendment. That simply didn't work, and that means that you go and you do the whole analysis of whether or not the protection from excessive fines is fundamental in American law. And as I said, you go back to the Magna Carta, Blackstone, all of these sources; the state constitutions in 1787. It's pretty clear that it is. So it was an easy decision. It went 9-0.

 

There's still a few rights that have not be incorporated. It'll be interesting to see how they could possibly come before the Court. For example, the Third Amendment right to be free from the quartering of soldiers in your home. That hasn't been incorporated yet. The Court doesn't tend to hear a lot of cases on that amendment, so it's unclear how it's going to come before the Court. In fact, let's say this: if it does come the Court, we're living in some pretty scary times, I suppose.

 

The right to a grand jury. That has not been incorporated yet. That's something that could come before the Court, and they'll have to do the same kind of analysis. But we're getting awfully close to having, through selective incorporation, every single element of the Bill of Rights incorporated against the states.

 

So if this is all so easy, people may ask, "Why were there concurrences in the case?" Well, there was really one primary concurrence that came from Justice Thomas, and it was on kind of a technical, wonky aspect of constitutional law. Generally speaking, we do incorporation through the Due Process Clause of the 14th Amendment. Justice Thomas has long felt that although incorporation is proper, it needs to be done through the Privileges and Immunities Clause of the 14th Amendment. The result would be the same, but he thinks that going through privileges and immunities is the more constitutionally proper way to do this. He thinks that's the correct originalist analysis.

 

Again, I don't know that it would really make any kind of difference in what the ultimate outcome is, and in fact, Justice Gorsuch had a very short, one paragraph concurrence in which he said, more or less, "I think I agree with Justice Thomas, but I'm not sure that we have to answer that question in this case. I don't know that it would affect the outcome." So he didn't join the Thomas opinion.

 

I read an article yesterday that compared Justice Thomas to Don Quixote for this concurrence. I've always kind of liked Don Quixote, and I've always kind of liked Justice Thomas, so I sort of liked the analogy. Maybe it is a bit quixotic, but I understand why Justice Thomas is very insistent that we get the methodology right. He's probably trying to really lay a marker, probably for law students who will read this opinion and for other young lawyers who think about how to process these questions in the future and how we really, he feels, need to do the originalist and textualist analysis in a particular way.

 

Next, we should talk about what the criminal justice implications of this case are moving forward because that's really where it's going to have a substantive impact on some of the practicing lawyers on this call. The first thing I want to be absolutely clear about is that the Court did not say that civil asset forfeiture is unconstitutional. Law enforcement can absolutely still seize assets and they can be forfeited. And I have no doubt that that's going to continue to happen. What the Court did do, however, is open the door to some excessiveness challenges against civil forfeiture. You're going to start seeing cases most likely where people say, "This forfeiture was excessive, and therefore it violated the Eighth Amendment. And I cite to Timbs v. Indiana in defense of my argument." And some of those cases will come before the Court, perhaps, and it will be interesting to see how the Court analyzes the very practice of civil forfeiture period.

 

There was actually a case that the Court denied cert on I think two years ago called Leonard v. Texas. And Justice Thomas, again, he briefly wrote, even though the Court denied cert, that he had some concerns about the practice of civil asset forfeiture. And he wondered if the practice itself might violate the 14th Amendment. So he seems open to considering this argument, which is made by a number of people throughout the country. The Institute for Justice does really important and fascinating work on civil forfeiture. In fact, they argued and won the Timbs case yesterday. But other organizations that are more identified on the left, like the ACLU, also seem to agree.

 

For people who are curious, you can Google John Oliver and civil forfeiture, find this on YouTube. He did a really fascinating, long segment on the practice of civil asset forfeiture, which is very funny and very interesting. It is a provocative question, whether or not this practice of seizing people's property and taking possession of it even before they've been convicted of a crime may, in fact, violate due process on its face. The Court may be considering those questions in the future as a result of this opinion that was issued yesterday.

 

Also, for people who work in the criminal justice space as I do, one of -- really the most important areas right now surrounds the question of fines and also fees which may be excessive and which may be counterproductive in the criminal justice system because if they're too high, you kind of deny people an opportunity to have a livelihood in order to make money to properly reenter society, in order to pay restitution, by the way, to any victims they may have had along the way. A lot of arguments are being made that there are excessive fines peppered throughout the criminal justice system, and I think that this opinion in Timbs v. Indiana is going to open the door to making a lot of arguments about the excessiveness of those fines moving forward. And it may be that the Court is going to have to start listening to some of those arguments and start answering some of those questions.

 

So those are the criminal justice implications. We'll have to see what happens moving forward. As I said, though, the case itself seemed pretty obvious. It was decided unanimously. It was 9-0. But it still was, I really feel, one of the most interesting, quirky, and fun cases of the Supreme Court term. At this point, Micah, if people have any questions, I'd be happy to try and answer them.

 

Micah Wallen:  Thank you, Vikrant. Without further ado, we will go to our first question.

 

Chance Weldon:  Hi, this is Chance Weldon over at Texas Public Policy Foundation. I just had a question about if we can take anything about the standard for Eighth Amendment cases going forward out of the majority opinion. Two of the things I noticed was, one, they didn't use the "so grossly disproportional that it shocks the conscience" language that we've seen in some lower court opinions. They just seemed to go with what seems like a proportionality standard.

 

And then, two, it seems like there's a second step to that where if they take the means of your employment, sort of borrowing from the English common law from Magna Carta, I mean could we see the beginnings of maybe a new Eighth Amendment standard that has two parts being cobbled together in this opinion? Or am I just reading too much into it?

 

Vikrant Reddy:  No, I don't think you are at all. To begin with, yeah, I'm not really sure what kind of a standard they're going to use moving forward. I'm not clear on that either. It's probably a kind of proportionality that gets a little bit vague. I said it was obvious that the fact that the Land Rover was more than four times what the maximum penalty would've been under Indiana law made the excessiveness kind of obvious. But what if it was three times? What if it was double? I'm not really sure how the Court is going to analyze that moving forward. But I suppose we'll see.

 

Your second question is incredibly interesting, about whether or not the Court is going to start doing an analysis of the extent to which these fines or these forfeitures affect people's ability to earn a livelihood. Justice Ginsburg did include language to that effect in the opinion. There is language of that effect, actually, in Magna Carta from back in 1215. So those ideas are inherent in the common law. They're inherent in our legal history. And I think they may very well become a part of the analysis moving forward.

 

I mentioned the ACLU's amicus brief. They mentioned those same ideas also. And if you live in a state like Indiana—I'm from Texas just like you, by the way—you really need your car to get to work. It really affects your livelihood. You can't just get on the bus or on the metro or something like you can in Washington D.C. So it really does matter, and it will be interesting to see whether or not the Court starts taking those kinds of things into account when it analyzes more of these cases in the future.

 

Micah Wallen:  All right. Now let's go to our next question.

 

Caller 2:  Hi. I'm just calling from Connecticut. Thank you very much for the great explanation of the case and the disclaimers. I haven't had a chance to read the case nor the interesting Justice Scalia comments that you mentioned. But my question is when we talk about excessive fines and we compare the value of the vehicle to the maximum that the State of Indiana allows, is it an issue at all, or was it an issue at all if the plaintiff in this case doesn't actually own most of the vehicle, i.e. if he's borrowed 90 percent or even 100 percent of the vehicle? Is it, in fact, his asset, and does that work into the $10,000 value, which he may actually -- it may actually end up being less than that if he's got a large loan on the vehicle. That's kind of my question.

 

Vikrant Reddy:  It's a great question. I don't know the answer, but it's important because it really follows up on the last question that was asked on this notion of the degree to which the Court is going to start analyzing whether or not the asset involved could affect your livelihood. There're a lot of questions about what an asset is and how you value that and how you take a look at somebody's worth. That ACLU brief had -- the amicus brief, had a really interesting and edgy, I think I would say, section that said that something that governments ought to be doing is making fines proportional to people's worth. So if you have a fine of $10,000, that's awfully burdensome on Tyson Timbs. It's much less burdensome on Bill Gates. And so the ACLU argument was that those kinds of things matter and that perhaps that the way fines ought to be levied.

 

I’m not sure what I think about that, but to the extent that anybody agreed with that kind of an argument, you'd have to start asking questions about how you evaluate exactly what it is that people are worth. Do you just look at their bank account? Do you look at the value of stocks? You have a really interesting point about whether or not you should look at whether a vehicle is owned outright or whether or not part of it is owned by a bank. I think those are all really important questions, and I think it points to why, In my judgment, that section of the ACLU's amicus brief is not quite as simple or as obvious as the brief writers want to make it out to be.

 

Micah Wallen:  We'll now to go our next question.

 

Caller 3:  Hi. I wondered if the Indiana Constitution has an excessive fines clause, and if so, did the state courts say that the forfeiture amount was not excessive under the state constitution?

 

Vikrant Reddy:  Their constitution does have an excessive fines clause. I know that, and I know that Indiana acknowledged that in their brief. But I'm not actually sure what the trial court said on that question. I’m sorry. I just don’t know the answer to that.

 

Micah Wallen:  We'll now go to our next question.

 

Jack Park:  This is Jack Park. Thank you, Vikrant. Going back to the car and the bank's ownership, if the government seizes it, they're taking bank property, and there may be recourse to Timbs. So Timbs may come out in the same position anyway. But it seems like a different kettle of fish when the government takes the bank's car.

 

Vikrant Reddy:  Yeah, no, Jack, I think that's an important point. And I think, like I said, that ACLU brief is pretty good. It's a big deal to have an amicus brief cited in an opinion like that, and I think Justice Ginsburg and the other Justices really liked that sentence that I read about why you have to be wary of excessive fines. But that argument about linking fines to worth and assets, I just think it needs a lot more thought for the kinds of reasons that you just laid out. It's not so obvious on my face that you can do that.

 

Micah Wallen:  Now we'll go to our next question.

   

Steve Klein:  Hi Vikrant. Steve Klein, Pillar of Law Institute. Fantastic presentation and I also haven't had a chance to read the opinion. But what you do you see this playing out, specifically -- and it's really great that this is a civil asset forfeiture case meets a criminal case. You have an actual conviction. You have a defendant who's able to show that he has a -- that he used inheritance money, money that was not related to his crime, to actually purchase the Land Rover. Where do you see the fallout here for civil forfeiture more broadly? Because so many cases of forfeiture are cops pull the suspect over, they seize cash or they seize the car, and the suspect is never even charged with a crime. So where do you see the fallout for civil asset forfeiture more broadly where -- forget punishment, forget fines; it really is just an in rem proceeding against the property itself.

 

Vikrant Reddy:  I think the practice is in real trouble, Steve, and it's an area that I've been working in for a few years. And it's getting very, very difficult to find people of any ideological stripe who support the practice. I even know people who are involved in originally kind of pioneering the practice in the Reagan administration who today are having a lot of misgivings about it because they feel it's being so awfully abused.

 

One of my favorite statistics to drop about civil asset forfeiture comes from this study that was done out of the state of Tennessee. And they were looking at this highway. I want to say . . . gosh, maybe it's I-40. If somebody's on the call from Tennessee, they'll know exactly the highway that I'm talking about. It runs east/west, and obviously, if you're going one direction, you're heading towards Mexico. If you're going the other direction, you're coming out of Mexico.

 

Now, if law enforcement was being just totally neutral about the way they were policing that highway, 50 percent of law enforcement would be on the eastbound side of the highway and 50 percent would be on the westbound side of the highway. The studies show that that's actually not what happens. 80 percent of law enforcement is on the westbound side of the highway, which is the side where the money travels, and only 20 percent are on the eastbound, which is the side where the drugs travel because they're coming out of Mexico. That's probably because law enforcement figured out somewhere along the line that if you stay on the westbound side of the highway, you can seize actual money. And you can use that to fund all sorts of things.

 

It seems pretty clear that there're some really perverse incentives in civil asset forfeiture right now, and the only folks who are really able to mount a defense are people who are in law enforcement. And I sympathize with their defense, by the way. If people in law enforcement have needs, then the American people need to fund those needs. But we have to do that through the proper procedures. We can't kind of do an end-round around those procedures and use civil forfeiture for that process. A lot of people have become concerned about this. I mentioned people from the Reagan administration who are concerned. One of those people is Ed Meese himself, the Attorney General who has raised some concerned about how civil forfeiture is being used these days. So I am optimistic that it may be on its last few legs here.

 

Micah Wallen:  We'll go to our next question.

 

Caller 6: Hey, good afternoon, Vikrant. Lovely presentation. I really enjoyed it. I wanted to ask you about some of this language that's in this opinion about the ability to earn a livelihood. What do you think was the Justices' motivation in including that? Because I think it was both in Ginsburg's opinion and in Thomas's concurrence. But they really seemed to focus on that as part of the, if nothing else, the test of when something is excessive. And to what extent do you think that that might formalize a right to earn a living that might apply in other contexts, such as licensure, those sorts of things?

 

Vikrant Reddy:  I've wondered about that. It's a great question. And you're right. It was very notable that they included that language because you could easily have written this opinion without including any language about that. My sense is that, and this maybe comes from my particular bias as somebody who works on criminal justice issues, but my sense is that they may be attuned to all of these very significant debates in American criminal justice right now about whether or not we are doing things to prevent people who are trying to reenter society from earning a living and whether or not that is actually having certain kinds of negative impacts on public safety and restitution of victims and things like that.

 

You mentioned the occupational licensing point. This has become a really hot-flash point in criminal justice circles because if you look at all of the various occupational licensing restrictions and requirements at the state level throughout the country, you get into thousands and thousands of limitations on people's right to earn a living if they're coming out from prison. There are all of these jobs that you might be able to do but that you're not permitted to do because the occupational licensing law says that somebody with a felony record can't do this.

 

And sometimes you get into really absurd situations like in my home state of Texas. This is no longer the case, but for many years the Texas prison system was teaching a course to inmates on barbering, teaching you how to cut hair. The idea was you can come out from behind bars and you can get a job as a barber, and you can start putting your life back together again. But unfortunately, there was a licensing restriction that had been passed by barbers, cosmetologists, whoever that said you had to have this barbering license in order to cut hair, and you weren't eligible for the license if you had done time behind bars.

 

Well, if you weren't eligible for the license if you had done time, then why in the world were they teaching the course? It was a real absurdity. They fixed that problem now, but you do run into these kinds of things. And it is very important that people who have committed crimes have to be held accountable, but once that accountability period is over, they need to be able to earn a livelihood again and just become human beings, become productive citizens. That may be what the Justices were getting at by insisting on including that language, like you said, both in the majority opinion and in Justice Thomas's concurrence.

 

Micah Wallen:  We'll go to our next question.

 

John Vecchione:  Hi, this is John Vecchione at Cause of Action. Thank you, Vikrant. I think on the previous caller's question, Cause of Action put in an amicus brief where we discuss this very issue, and it goes back -- there's a Latin phrase for it, but this ability to earn a living was something the Founders were concerned about. So I think we'll see it again.

 

But my question to you is the following: on civil asset forfeiture, it's got a very long history. It started a very long time ago, and it has a lot of case law about it going back even to pre-Revolutionary times. So I'm wondering on civil asset forfeiture, I don't know that we'll get a 9-0 decision -- is there anything we can gleam from this on the various alliances on that particular question?

 

Vikrant Reddy:  My answer is I think not. As somebody who studies civil asset forfeiture very closely, what I was really hoping to get out of this opinion was kind of a blockbuster concurrence from, say, Gorsuch and Sotomayor, would have been a really unusual pairing where they said, "Okay, we agree on the incorporation point, but as a side note, we'd like to make some observations about civil asset forfeiture." That would've made quite a splash, and it would've been really, really interesting for people who work in the criminal justice system to see that. You'd have a sense of where the Court might be headed on forfeiture.

 

But the Court did not do that. They decided to stick very narrowly to these incorporation questions. I don’t feel that I got any hint or any indication of what the Justices may feel about civil forfeiture. The only thing that I know is that Justice Thomas is open to considering the question. And I know that not because of anything that came out of yesterday's case, but because of what he wrote in Leonard v. Texas a few years ago. I’m not sure what the other eight Justices think. But I think you're probably right, John, that there's no way that if the essential question of civil forfeiture's constitutionality comes before the Court, there's no way it would go 9-0. It's going to be a more complicated case.

 

Micah Wallen:  We'll now go to our next question.

 

Rodger:  Hi, this is Rodger from Maryland. It was a great presentation. I was just wondering in this right to earn a living doctrine, let's consider the case of somebody who could be a brick mason or a cowboy that uses federal lands out in the West; [he] has some early criminal violation. Let's say he was born in a different country, crossed the southern border 25 years ago and has been clean ever since. If the government blocks him from earning a living, either by something that deprives him of his tools and his ability to work as a brick mason or prevents him from the use of federal lands where he's cowboyed for the last 25 years without event, could the law be extended that far in this kind of a case?

 

Vikrant Reddy:  I'm not sure. I'm afraid I haven't put a lot of thought into that question. But it's very interesting, and it touches on some hot-button issues in the immigration sphere also. I wish I had a better answer for you, but you've given me something to think about.

 

Rodger:  That's the perfect answer. I raised it for that purpose to try to get the thought out there.

 

Micah Wallen:  Two more questions just came through, so we'll go ahead and go to those now.

 

Eric Clipman (sp):  Hi, this is Eric Clipman from Minnesota. Again, like the other callers, it is a great presentation. I want to add my kudos as well.  My question is this, with respect to the proportionality analysis: I'm wondering whether -- and I'm mindful that in the area of civil asset forfeiture that cash and cars is sort of the coin of the realm, the most sought after products, and your Tennessee example explains that pretty well. But I'm wondering whether the proportionality analysis would be different if it were other, say, items where its mentality is used in the drug trade, say a very expensive drug weighing scale, or drug producing equipment, or guns, or a highly valued gun safe, whether that might inspire a different sort of proportionality analysis than a car, even an expensive car like the Range Rover, needed to get to work in Texas or other places?

 

Vikrant Reddy:  I wonder. I don't know the answer to that, but I can speculate a little bit that just trying to think through how that would work practically. It seems like it would be one heck of an aggressive move for a defendant to start arguing to the Court that his incredibly fancy drug weighing scale was taken from him inappropriately and that this was excessive. It's almost like one of these news of the weird stories where burglars break into a home and start complaining about some kind of contraption that hurt their knee or something like that. It's just hard to imagine, factually, something like that happening. I think it's more realistic that it would happen as you pointed out through money that was seized or vehicles that were seized. I suppose it's possible. It would be interesting to see what kinds of analysis courts did in a situation like that.

 

Micah Wallen:  Let's go to our next question.

 

Caller 10:  Hey, Vikrant, I might be reading too much into this, but it appears that Ginsburg in her majority opinion was a lot more of an originalist than I would've expected. Do you think that is because she is turning over a new leaf, or do you think that is because of the subject matter involving incorporation? Or do you think that somebody else might have helped her write this?

 

Vikrant Reddy:  No, I think it's a matter of the subject matter involved. I mean, the question of incorporation turns on whether or not it's fundamental to our legal history. And you just have to do the analysis that way. There's really no other way to go about it. So you're sort of obligated to do an originalist analysis. Although, you've got me thinking now. It was interesting that the opinion was assigned to her. And I guess you could wonder whether or not Justice Roberts said "Okay, I'm going to make one of the left-of-center Justices write an originalist opinion just because I think that would be fun to have out." Who knows? But I want to compliment Justice Ginsburg. It's a fantastic opinion. If you really like legal history, it's really fun to read. By the way, Justice Thomas's concurrence is even more in depth. He's really just kind of showing off his knowledge of 12th century English law. It's very impressive. Both opinions are a lot of fun for people who are interested in those kinds of subjects. I think they're very well done.

 

Micah Wallen:  We have a question coming in now, so without further ado.

 

Stan:  This is Stan from New York. I just wanted to ask whether the question of the validity of incorporation is -- everyone considers that settled. It always seemed to me one of these sort of made up things that it's pretty straight forward to put in an amendment that applies to the states. It just always seemed made up to me, and I just wondered if that it completely over or if there's anybody still interested in fighting the other side of that.

 

Vikrant Reddy:  I think it's more or less completely over. This case was argued in late 2018, and there was a really funny moment during the oral argument where Justice Gorsuch sort of got exasperated and said, "It's 2018. Are we really still arguing about this? Are we really still arguing about incorporation?" And obviously the case went 9-0. I think, more or less, it is over. It's hard for me to think of really prominent judges who are anti-incorporation who are out there. I suppose there's an academic argument to be made, but there's not really a practical argument to be made anymore. I don't see anybody introducing an amendment or anything like that to kind of formalize incorporation because, selectively, we have this large body of case law that is incorporated, virtually all of the Bill of Rights at this point anyway. I'd mentioned earlier that there are a few clauses and a few rights that have not yet been incorporated, but more or less we're there. So just as a practical matter, I don't see anybody prioritizing it.

 

Micah Wallen:  We have no questions lined up at the moment. So Vikrant, did you have any further remarks to add?

 

Vikrant Reddy:  Well, I just wanted to thank everybody who participated in the call today for calling in. I wanted to thank the questioners and, again, thank The Federalist Society for having me do this today.

 

Micah Wallen:  Absolutely. And on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.