Dammit, Donald Trump is not the boss of us! We are not going to allow his giant, orange ass to blot out the sun. Other stuff is still happening, it still matters, and we're still going to discuss it. So let's talk about what went down at the Supreme Court yesterday. Because, despite the GOP's best efforts to ratfuck the judiciary, our court system is still working more or less properly.

Yesterday's oral argument in Timbs v. Indiana boils down to one basic question: Can state and local government just take all your shit if you commit a minor crime? Only they said it in legalese, which translates to "Does the Eighth Amendment's prohibition on excessive fines apply to state seizures through in rem proceedings?" Sexy!

When adopted, the Bill of Rights -- that is, the first 10 Amendments to the Constitution -- were not understood to apply to the states. But over time, courts have held that local governments are bound by specific Amendments. You do have the right to remain silent, whether you're (not) talking to the FBI or to the local sheriff. We are all in agreement that the Eighth Amendment's prohibition on cruel and unusual punishment means prisoners can't be flogged. The issue before the Court yesterday was whether the other part of the Eighth Amendment, the ban on excessive fines, is also incorporated, i.e. does it apply to the states.

And if you're saying to yourself, "Well, duh! It can possibly be legal for Sheriff Hogg to seize the General Lee just because he finds an empty bottle of moonshine in the trunk," well, you and Justice Gorsuch are in total agreement. (And you're dating yourself.)

JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s.

MR. FISHER: Right.

JUSTICE GORSUCH: And here we are in 2018 --­

MR. FISHER: Right.

JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General.

(The Solicitor General of Indiana, Thomas M. Fisher, is referred to as General. It's a weird world.)

Even Justice Kegstand is on the right side of this one.

JUSTICE KAVANAUGH: Well, for the clause, why do you have to take into account all of the history, to pick up on Justice Gorsuch's question? Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated? [...] But aren't -- but aren't all -- all the Bill of Rights at this point in our conception of what they stand for, the history of each of them, incorporated?

Yeah, still not forgiving that guy. Never gonna happen. But let's move on to the facts of this case.

In 2013, Tyson Timbs was a small-time drug dealer in Indiana with a serious heroin problem. He was also the owner of a really nice car, a LandRover LR2, purchased that year for $42,058.30 with proceeds from his father's life insurance policy. The police sent a confidential informant to buy small amounts of heroin from Timbs, once at his apartment, and once at a gas station where he sold the informant two grams of heroin for $260. The local police then seized his $42,000 car, arguing that it was used in the commission of a crime.

Technically, they sued the car itself, bringing a suit in rem, i.e. against a thing, as well as in personam, i.e. against Tyson Timbs as a person. Which is why his case looked like this.

Timbs's lawyer Wesley Hottot of the Institute for Justice faced some handwringing from Justices Alito and Roberts over dragging the Supreme Court into annoying fights over the definition of "excessive." That Chief Justice Roberts is a bold thinker -- said no one ever.

Then it was General Fisher's turn at the podium, where he got SMACKED. Justice Breyer even got him to admit that, by Indiana's logic, it would be totes cool for the state to seize a Bugatti if someone were driving it five miles over the speed limit.

JUSTICE BREYER: So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy?


MR. FISHER: There -- no, there is no -- there is no excessive fines issue there. I -- what I will say and what I think is important to -- to remember is that there is a constitutional limit, which is the proof of instrumentality, the need to prove nexus. [Meaning, was the forfeited asset used in commission of the crime.]

JUSTICE BREYER: That isn't a problem because it was the Bugatti in which he was speeding.


MR. FISHER: Right.

JUSTICE BREYER: So -- so there is all the nexus.

MR. FISHER: Historically -­

JUSTICE BREYER: Now I just wonder, what -- what is it? What is it? Is that just permissible under the Constitution?

MR. FISHER: To forfeit the Bugatti for speeding?

JUSTICE BREYER: Yeah, and, by the way, it was only five miles an hour -­


JUSTICE BREYER: -- above the speed limit.

MR. FISHER: Well, you know, the answer is yes. And I would call your attention to the -­


MR. FISHER: Yes, it's forfeitable.

You really, really don't want to be that guy. Ian Millhiser at Think Progress has an interesting analysis of a split between Bush and Trump appointees in this case. But we note that Clarence Thomas isn't impressed with podunk sheriffs who fill their towns' coffers by shaking down passing drivers, either.

So, yes, everything is awful all the time. But if the Supreme Court finally intervenes and stops rapacious local governments from using minor crimes to hoover up assets -- and it sure looks like it will -- it's a very Nice TIme. We're not used to being on the same said as Justice Gorsuch, but ... "Come on, General!"

[Timbs v. Indiana]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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