Reining In Excessive Fines

Yesterday the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution — which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — imposes limits on the abilities of state and local governments to seize assets and property and impose financial penalties.  And the Court’s ruling applying the “excessive fines” clause of the amendment to state and local governments was a unanimous one, which is a welcome development in our era of increasingly divided politics.

gettyimages-1066751830The case involved an Indiana man who was arrested for selling several hundred dollars’ worth of heroin, had his $42,000 Range Rover seized as part of the process — even though the maximum fine for his crime was $10,000 — and sued to get his car back.  The Indiana Supreme Court ruled that the “excessive fines” clause of the Eighth Amendment did not apply to the states, even though the “excessive bail” and “cruel and unusual punishment” clauses have long been applied to the states.  The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, disagreed.

The decision yesterday addresses a significant real world issue — namely, how far can states and local governments go in imposing monetary penalties and seizing property from people who violate the law . . . or, in some cases, are only accused of violating the law.  Because raising taxes isn’t popular with voters, state and local governments have increasingly looked to aggressive forfeiture practices to fund part of their operations.  Briefs filed in the Supreme Court noted that more than half of municipal and county agencies who participated in a survey said reliance on forfeiture profits was a “necessary” part of their budgets, and that, in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures. And the aggressive penalties aren’t limited to drug offenses.  One brief in the Supreme Court, for example, described how a $100 ticket for a red-light violation in California results in another $390 in fees.

In holding that the excessive fines clause applies to the states and local governments, Justice Ginsberg noted that “[e]xorbitant tolls undermine other constitutional liberties,” and added:  “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Now that the states know that they can’t impose excessive fines, it will be up to the courts to determine whether the aggressive property forfeiture and fining practices, like the seizure of the Range Rover, are “excessive” or not.  We’ll have to see how that works out, but for now it’s nice to know that Americans have another constitutional protection against potentially overreaching governmental actions.

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No DOMA Nation

Yesterday the Supreme Court struck down a key provision of the Defense of Marriage Act, a 1996 federal law that denied rights and benefits to same-sex couples, and rainbow flags flew from sea to shining sea.

The Court’s decision was one of two rulings yesterday that addressed gay marriage.  In the DOMA decision, a 5-4 majority of the Court concluded that the statutory provision violated the right to liberty and to equal protection for legally married gay couples.  The ruling means that the thousands of gay couples who are legally married under the laws of certain states will be able to take advantage of federal tax and pension rights and other benefits that are available to other married couples.  In the other ruling, the Supreme Court held that proponents of California Proposition 8, which prohibits gay marriage, lack standing to defend the law.  That ruling leaves a lower court ruling that struck down Proposition 8 intact and therefore allows California to resume with state-sanctioned same sex marriages.

The Supreme Court decisions are not the last word on the subject, because gay marriage is not legal in a majority of the states and the DOMA decision did not address a provision of that statute that provides that states are not required to recognize gay marriages performed in other states where gay marriage is legal.  Opponents of same-sex marriage say they will continue to advocate on the issue.

I’m in favor of same-sex marriage, and I’m thrilled for my gay friends whose legal marriages are now given all the rights and benefits available under federal law.  I’m also hoping that the Supreme Court’s decision helps the United States to put this issue behind us — as opposed to becoming the lightning rod on a bitterly contentious social issue, as happened with the abortion rights decision in Roe v. Wade.  It’s time for this country to stop focusing on issues that divide us, and to start focusing on how we can work together to solve our problems.

Should You Be Able To Patent Your Genes?

The Supreme Court hears cases of constitutional import that make front-page headlines, but also wrestles with issues that make you stop and think about how the world is changing.  Yesterday the Court heard argument in a case in the latter category, and the issue is whether human genes should be patentable.

The case involves the legality of a patent that one company, Myriad Genetics, holds on genes that can identify an increased risk of breast and ovarian cancers.  Myriad uses the patents to test women for mutations that can indicate risk and charges thousands of dollars — typically paid by insurance — for the tests.  Opponents of the Myriad patent, and other human genetic patents, say there is no inventive process involved and the patenting of human genes has impeded research, medical progress, and access to testing.  Myriad and its allies argue that the process of identifying and isolating the genes satisfies the inventive requirement and that disallowing patents on genes would affect billions of dollars in investments and patents on useful things like genetic tests and biotech drugs and vaccines.

At yesterday’s oral argument, the Court’s questions indicated some skepticism about the patentability of human genes and whether they really involve the inventive process that is the focus of patent rights — although lawyers will tell you that drawing conclusions from judicial questions is a risky business.

The issues are intriguing.  If we can target human genes that will allow us to detect and avoid fatal diseases like cancer, we’d like to think that such discoveries would be used for the benefit of all mankind.  At the same time, however, what companies are going to spend billions of dollars going through the laborious process of identifying those genes without some assurance that they will be able to recoup those costs, and a profit besides, through the protections afforded by patent law?   And how much invention should be needed to secure a patent, anyway?  If genes can be patented, should we all pony up the patent application fee and try to patent every gene in our bodies, just to be on the safe side?

The Court will try to answer these questions before this term ends in June.

In Line For History

Usually, we associate people camped out in lines for days with hot rock concerts, or huge basketball games, or Black Friday special sales.  In Washington, D.C., however, people have been waiting in line since Friday for seats to watch the U.S. Supreme Court.

This week, the Court will hear argument on two cases that may — and I emphasize may — resolve the constitutional status of same-sex marriage.  On Tuesday, in Hollingsworth v. Perry, the Court will address Proposition 8, a state constitutional amendment banning same-sex marriage that California voters passed in 2008.  On Wednesday, in United States v. Windsor, the Court will examine the federal Defense of Marriage Act, a 1996 statute that prevents same-sex couples from enjoying benefits, such as filing joint tax returns, that are available to “traditional” married couples.

Proponents of gay marriage hope the Court will use the cases to declare that different treatment of same-sex marriages violates the equal protection clauses of the Constitution.  As is often the case with Supreme Court cases, however, procedural issues may be decisive.  In the California case, a threshold issue is whether the conservative groups seeking to defend Proposition 8 have legal “standing” to do so, which will require the Court to consider whether the groups have a real stake in the outcome or are officious intermeddlers who won’t be personally affected by resolution of the dispute.  Another key question is which “standard of review” the Court should apply, with much tougher scrutiny being given, for example, to laws that discriminate on the basis of race than to laws that simply regulate economic activity.  The Obama Administration is urging the Court to apply a heightened level of scrutiny to laws that address gender orientation.

Lurking below are the “big picture” notions that only the Supreme Court can truly consider.  Should the Constitution be read strictly, according to “original intent” and the social mores that prevailed at the time its amendments were adopted, or is it a more flexible document that can evolve to encompass cultural changes?  If the latter approach is taken, how do you keep the Constitution from being read with such elasticity that it loses any intrinsic meaning and simply becomes whatever a majority of nine justices might declare?  And if you conclude that the Constitution does protect “gender orientation,” can you write your opinion in a way that would allow courts and legislators to draw principled distinctions between same-sex marriage and other forms of personal commitment between consenting adults — such as polygamy?  Often the Court decides cases narrowly precisely to avoid have to address these kinds of broad and difficult questions.

There’s a reason people are willing to endure days of the blustery late-March weather in Washington, D.C. to get a seat for these arguments.  This week, history will be made in the solemn Supreme Court oral argument chamber.

Silent Justice

In a loud and loquacious world, Supreme Court Justice Clarence Thomas has earned a reputation for his silence.

During oral arguments before the Supreme Court, Thomas almost never speaks.  In fact, his statements during oral argument are so rare that, when he does ask a question or make a comment, it becomes news and is covered even on overseas websites like the BBC.  That’s what happened this week, when Thomas made his first statement during an oral argument since February 22, 2006.  In short, he hadn’t spoken at an oral argument for almost seven years.  On Monday, his comment apparently was a joke about lawyers from different law schools that caused some of the other Justices to laugh.

Thomas doesn’t think he needs to ask questions during oral argument to do his job — and he’s right.  He reads the briefs submitted by the parties, votes on whether cases should be accepted for review by the Court, writes majority opinions, concurrences, and dissents, handles the other duties of a Supreme Court Justice, has developed a very consistent (and very conservative) judicial philosophy . . . and gives an occasional speech, besides.  The other Justices bombard the attorneys who argue before the Court with questions and, many legal scholars believe, pose the questions not to hear the answers, but rather to communicate with and attempt to persuade other members of the Court.  Thomas thinks that lawyers should be able to present their arguments without constant interruptions, so he stays silent during oral argument.  Who’s to say which approach is the right one?

I admire Justice Thomas for his willingness to buck the prevailing trend and follow his own approach.  I also respect anyone who, in our texting, talking, e-mailing, communication-saturated culture, somehow manages to keep his own counsel.

An Election About Something Concrete And Fundamental

I haven’t yet read the Supreme Court opinions issued on the constitutionality of the “health care reform” act.  From news reports, I understand that the 5-4 majority characterized the individual mandate as a tax and therefore within Congress’ constitutional power.

Because I haven’t read the opinions, I can’t comment on their merits.  One result of the Court’s action, however, is that the stakes for the upcoming election will be both heightened and sharpened.  Almost immediately after the ruling, I received emails from the Democratic Party and its candidates lauding the decision and the act it upheld.  From the Republican side of the aisle came commitments to repeal the statute and expressions of concern about the increasing role of government.

Since the days of the Revolutionary War, American history is full of debates about fundamental questions that were resolved through the political process and at the ballot box.  I’d rather have the focus of this year’s election be on the role of the federal government and the merits of the “health care reform” statute than on ginned-up issues like the investments made by Bain Capital when Mitt Romney worked there.

Voters now know far more about the “health care reform” statute than we did when it was being pushed through Congress in a process characterized by hastily written language, backroom deals, and votes cast by members who hadn’t even read the bill before them.  We’ve seen actual actions taken by the federal government pursuant to the statute — including the regulations that have upset the Catholic church and other religious groups — and we know the funding mechanism for the statute is properly viewed as a broad tax.

As a result, the debate to come will be far more concrete than the debate that occurred several years ago — and the voters will decide who wins that debate.  That is a good thing.

Waiting On The Court

Deep in the marbled chambers of the majestic Supreme Court building, members of the High Court and their clerks are hard at work on the opinion — or more likely, opinions — to be published when the Court decides the constitutionality of the “health care reform” legislation.  The opinion(s) will be issued within the next week or two as the Court wraps up its work for the year.

The issues swirling around President Obama’s signature legislative achievement have dropped off the public’s radar screen recently, but you can bet that they remain front and center at the White House, the Romney campaign headquarters, and on Capitol Hill.  Whether the Supreme Court upholds the statute, or strikes it down in whole or in part, its decision will be like a bomb going off in the middle of the presidential campaign.  I can’t remember another situation like this, where the Supreme Court will decide the constitutionality of major, controversial legislation — and do so only a few months before a presidential election in which the Court’s decision itself will almost certainly be an issue.

The timing of the Court’s decision will be interesting for two reasons.  First, both carefully scripted campaigns will be knocked off message, for a few days at least, and will be required to respond on the fly to the Court’s decision and the stated rationale for that decision.  The unpredictability of the Supreme Court’s decision means we might just get an honest, candid reaction from a candidate or a Congressman for a change — before the talking points get drafted and everyone adheres to the accepted party line for their side.

Second, and more important, Supreme Court opinions are serious documents written by serious people.  The Justices know their opinions will be carefully read and critiqued, for their intellectual and legal merit, immediately and for decades to come.  They will be working to make those opinions as persuasive and carefully reasoned as possible.  The opinions will address fundamental issues about the structure of our government and the extent of federal power, taking into account the language of the Constitution, the history of our republic, and the decisions of prior Courts.  They will grapple with those issues in a sober, respectful manner, with the majority and dissenting opinions acknowledging, and responding to, each other.  What a refreshing change from the shouting, bullet point blather that passes for political discourse these days!

This will be an exciting time for our country and our Constitution.  It’s another reason for us to step back, admire the foresight of the Framers, and see that our 225-year-old Constitution still works, and works well.