Welcome to the November Sitting of the Supreme Court! What's that? It's not November you say? Psh, no problem. The Supreme Court doesn't care! We already had an October Sitting, and the majority of the November Sitting is actually IN November, so ... we just call the whole thing the "November Sitting" and call it good. Remember, in the law all that matters is how you define terms, whether it makes any sense or not!
The Court has a couple of blockbuster First Amendment cases tomorrow, but we opened up the sitting with a Due Process case ... and not even one of those "substantive due process" cases that Darkslayer hates so much, but an honest to goodness regular old "process" based Due Process case! In case you're not familiar with the idea of Due Process, it is a Constitutional protection that provides no one is to be "deprived of life, liberty, or property without due process of law." The Fifth Amendment provides this guarantee against the Federal government, while the 14th Amendment offers the exact same protection against State governments. Of course, the Constitution doesn't come with a set of definitions, and there is nothing that actually says exactly what "process" is "due" in any given situation. Thankfully we have nearly 250 years of court precedent to answer that question as it applies to various situations to help us out.
Even with that, there are certain situations where the Supreme Court has not definitively answered the question and where the answer isn't necessarily obvious, and that occasionally results in a "Circuit split" where the lower Courts of Appeals have given different answers to the question. The Supreme Court very much dislikes circuit splits when it comes to constitutional protections, because the existence of a circuit split means the writes that citizens have under the Constitution vary depending on where people live ... and that's not something that should happen when it comes to Constitutional rights, which should generally apply the same way throughout the country.
Here, we are dealing with the issue of the process that is due in civil forfeiture proceedings. These proceedings have become more and more common throughout the United States since the 1970s, with allegations in many states that state and local governments and police organizations are using civil forfeiture to raise money rather than for purposes that most people would consider more legitimate. The underlying facts of the case that made its way up to the Supreme Court here involved such a situation, where a woman's son took her car for a drive and was pulled over. That stop ended up with the son's arrest for possession of marijuana and drug paraphernalia, and eventually in the seizure of the car. Eventually, after 20 months, the state courts granted the woman summary judgement due to Alabama's "innocent owner defense," as the woman didn't have anything to do with her son's possession charges.
The woman argued that this fact pattern resulted in a deprivation of her due process rights, as she was deprived of property - her vehicle - for 20 months without what she viewed as appropriate "due process." The state of Alabama, on the other hand, argued that it had given her all of the process that it was Constitutionally required to give her. The state's position relies largely on the history of forfeiture in the United States, a history that extends back before the Constitution even existed. Historically, there was very little process due in a civil forfeiture situation until a final hearing on the legitimacy of the forfeiture. Sometimes, these things can take time - property is often seized immediately upon an arrest for commission of a crime, and then held while an investigation plays out. While 20 months is fairly lengthy, delays of over a year from the time of seizure until a final hearing is held on the forfeiture is not exactly uncommon. As a result, the woman's legal team is arguing that some additional hearing to occur prior to the final hearing may be appropriate in some cases, and that the Court should recognize that need in deciding what the appropriate due process test for post-seizure due process in forfeiture cases should be.
The Court actually granted certiorari with a somewhat unusual question presented in this case, reflecting this "choice of tests" posture that the case arrived in:
Justice Gorsuch actually commented on this question presented, pointing out how odd it was and asking why this was the question, rather than a question that asked what the Due Process Clause demanded in this particular case. The poor attorney was left stymied and pointing the finger at the Court for having granted certiorari in that particular question presented, and Justice Gorsuch got a laugh by acknowledging that he knew exactly who was to blame, and it was definitely the Court.
Nonetheless, that is the question presented the Court has in front of it, and a lot of time was spent discussing the difference. Essentially, the Barker test focuses entirely on the timing of the final hearing - was it prompt? If so, then there's no problem. Any other issue that comes up is sufficient, so far as the state of Alabama and the United States government, involved in the case as an amicus on Alabama's side, are concerned. So long as that hearing is prompt then every issue that could come up is timely and can be raised in front of a judge during the final hearing, end of story. The US government was even more categorical on this than the state of Alabama was, essentially saying that this promptness inquiry was all that has ever mattered and all that should matter, and that because there is a clear historical analog then there is no need for any other test to be applied.
On the other side, several Justices (including Sotomayor, Jackson, and Kagan) all pointed out that civil forfeiture was very, very different in the late 1700's when it was mostly ships (including pirate ships!) and trade goods that ended up being subject to civil forfeiture proceedings, whereas the new explosion of civil forfeiture proceedings has led to a much wider variety of goods, including (most notably for cases like this one) the seizure of personal vehicles. The Petitioner here is arguing that whether or not the final hearing is "prompt" for due process purposes, there is a second right at stake - a right to possession/custody of the property in question for the interim period between the initial seizure and the final forfeiture hearing. In other words, even 6 months would be an awfully long time to wait if you rely on the vehicle that was seized. Since the Barker test is really only concerned with the timeliness of the final hearing, it is simply unable to handle questions like whether or not there is undue hardship in the police keeping custody of a seized vehicle for 6 months, a year, 2 years or more without giving the owner any chance to gain possession until that final hearing occurs. Especially when a state allows an innocent owner defense - as Alabama does - there is a due process right, in the petitioners view, to raise these arguments as a preliminary hearing of some sort that occurs in a much more timely manner.
The three judges on the left definitely were sympathetic to this argument, but so clearly was Justice Gorsuch. Remember, he earlier expressed concern about the question presented in the case and thought it was more appropriate to ask what the Due Process clause actually demands here. That makes sense given his largely textualist approach to the law - why would he just ask what precedent to follow if the precedent wasn't directly on point for these situations and when the right question was really what the Constitution required. To a lesser extent, all of the Justices except for Justice Alito expressed at least some sympathy with both sides. Justice Alito was pretty clearly on the side of the government in believing that a final hearing was good enough.
Numerous Justices - again including the justices on the left and Justice Gorsuch in particular - were also very concerned about whether accepting the Alabama/Federal position would prevent them from addressing due process concerns that involved issues other than just timeliness of the final forfeiture hearing. While Alabama and the Feds made the argument that the Barker test allowed more flexibility, in reality it just allows the same amount of flexibility as the Mathews test but only once you reach the final forfeiture hearing, where the judge in the case would look at the interests of the state in completing the forfeiture and the interests and equities on the property owner's side and make a determination. But there is no real space for questions of addressing appropriate hardship cases or other non-timeliness related process questions if following Barker. This at least opens the door to the Mathews test being applied, which looks at much the same factors as Barker but allows for judges to make the decision on whether a preliminary hearing is appropriate given the context of the case.
There was also an interesting exchange in this case between Justice Alito and Justice Jackson over the boundaries for questioning in this case. Justice Alito - very clearly trying to force the Petitioner's lawyers into a corner, aggressively tried to pin down Petitioner's counsel by getting him to give particular timelines and procedures that he would follow. Justice Jackson rode in to his rescue, however, making clear that such questions were far beyond the question presented in the case and were better left to the lower court to decide when applying the appropriate test, whatever the Supreme Court said it should be. Later in the argument Justice Alito pushed back, saying that he knew some of his colleagues were uninterested in his questions but he nonetheless wanted answers. I imagine Alito and Jackson probably didn't go grab a bite to eat together after the session.
Also interesting was an exchange between Justice Sotomayor and the lawyer for the state of Alabama which got a little rough and tumble. At one point the Alabama lawyer seemed to suggest that the only reason you would want to have a pre-hearing (what he called a "mini-trial") would be to intentionally obfuscate the facts to try to reduce the accuracy of the proceedings by pushing for a speedy resolution - in other words, suggesting that only criminals would be pushing for such fast procedures. Justice Sotomayor just straight up asked "Why?" and then went on a bit of a lecture of her own suggesting that criminals don't make use of these kinds of pre-resolution hearings because they are used only by bona fide innocent owners who are much more frequently than not vindicated by getting their property back. While I largely oppose Alabama's position in this case I have to admire the chutzpah of the attorney - and, to be fair, the accuracy of his statement - when he pushed back in the following exchange:
That's a pretty remarkable clapback, and he's right - Justice Sotomayor didn't really have anything but anecdotal personal experience for what she was asserting, which was absolutely the time of thing that properly should have been presented by the Petitioner and backed up by evidence. She was commenting as an advocate here, not as a judge, and while I admit it begrudgingly, it is an accurate and appropriate clapback.
In the end, I think the Court is going to go against Alabama and the United States here. I think the Chief Justice will get involved to try to keep the ruling as narrow as possible, because the court does not want to open the door to the parade of horribles envisioned by Alabama that would see a flood of extra proceedings and the dismantling of civil forfeiture as an accepted practice ... but in the end I think we'll see a 7-2 decision on the narrow grounds that the more general Mathews test is the appropriate one to use, probably with some significant guardrails on how to use it appropriately to prevent it from swallowing civil forfeiture proceedings entirely. Alito will definitely be on the other side, but you could see a weird split. Thomas could end up siding with the majority in a ruling like this on narrow grounds, perhaps while writing a concurrence. Meanwhile, Kavanaugh or Barrett could end up joining Alito on historical grounds. But I think in the end we'll a 7-2 result in favor of the Petitioner and recognizing the Mathews test as the more appropriate one to use in the modern context of civil forfeiture cases.
The Court has a couple of blockbuster First Amendment cases tomorrow, but we opened up the sitting with a Due Process case ... and not even one of those "substantive due process" cases that Darkslayer hates so much, but an honest to goodness regular old "process" based Due Process case! In case you're not familiar with the idea of Due Process, it is a Constitutional protection that provides no one is to be "deprived of life, liberty, or property without due process of law." The Fifth Amendment provides this guarantee against the Federal government, while the 14th Amendment offers the exact same protection against State governments. Of course, the Constitution doesn't come with a set of definitions, and there is nothing that actually says exactly what "process" is "due" in any given situation. Thankfully we have nearly 250 years of court precedent to answer that question as it applies to various situations to help us out.
Even with that, there are certain situations where the Supreme Court has not definitively answered the question and where the answer isn't necessarily obvious, and that occasionally results in a "Circuit split" where the lower Courts of Appeals have given different answers to the question. The Supreme Court very much dislikes circuit splits when it comes to constitutional protections, because the existence of a circuit split means the writes that citizens have under the Constitution vary depending on where people live ... and that's not something that should happen when it comes to Constitutional rights, which should generally apply the same way throughout the country.
Here, we are dealing with the issue of the process that is due in civil forfeiture proceedings. These proceedings have become more and more common throughout the United States since the 1970s, with allegations in many states that state and local governments and police organizations are using civil forfeiture to raise money rather than for purposes that most people would consider more legitimate. The underlying facts of the case that made its way up to the Supreme Court here involved such a situation, where a woman's son took her car for a drive and was pulled over. That stop ended up with the son's arrest for possession of marijuana and drug paraphernalia, and eventually in the seizure of the car. Eventually, after 20 months, the state courts granted the woman summary judgement due to Alabama's "innocent owner defense," as the woman didn't have anything to do with her son's possession charges.
The woman argued that this fact pattern resulted in a deprivation of her due process rights, as she was deprived of property - her vehicle - for 20 months without what she viewed as appropriate "due process." The state of Alabama, on the other hand, argued that it had given her all of the process that it was Constitutionally required to give her. The state's position relies largely on the history of forfeiture in the United States, a history that extends back before the Constitution even existed. Historically, there was very little process due in a civil forfeiture situation until a final hearing on the legitimacy of the forfeiture. Sometimes, these things can take time - property is often seized immediately upon an arrest for commission of a crime, and then held while an investigation plays out. While 20 months is fairly lengthy, delays of over a year from the time of seizure until a final hearing is held on the forfeiture is not exactly uncommon. As a result, the woman's legal team is arguing that some additional hearing to occur prior to the final hearing may be appropriate in some cases, and that the Court should recognize that need in deciding what the appropriate due process test for post-seizure due process in forfeiture cases should be.
The Court actually granted certiorari with a somewhat unusual question presented in this case, reflecting this "choice of tests" posture that the case arrived in:
Justice Gorsuch actually commented on this question presented, pointing out how odd it was and asking why this was the question, rather than a question that asked what the Due Process Clause demanded in this particular case. The poor attorney was left stymied and pointing the finger at the Court for having granted certiorari in that particular question presented, and Justice Gorsuch got a laugh by acknowledging that he knew exactly who was to blame, and it was definitely the Court.
Nonetheless, that is the question presented the Court has in front of it, and a lot of time was spent discussing the difference. Essentially, the Barker test focuses entirely on the timing of the final hearing - was it prompt? If so, then there's no problem. Any other issue that comes up is sufficient, so far as the state of Alabama and the United States government, involved in the case as an amicus on Alabama's side, are concerned. So long as that hearing is prompt then every issue that could come up is timely and can be raised in front of a judge during the final hearing, end of story. The US government was even more categorical on this than the state of Alabama was, essentially saying that this promptness inquiry was all that has ever mattered and all that should matter, and that because there is a clear historical analog then there is no need for any other test to be applied.
On the other side, several Justices (including Sotomayor, Jackson, and Kagan) all pointed out that civil forfeiture was very, very different in the late 1700's when it was mostly ships (including pirate ships!) and trade goods that ended up being subject to civil forfeiture proceedings, whereas the new explosion of civil forfeiture proceedings has led to a much wider variety of goods, including (most notably for cases like this one) the seizure of personal vehicles. The Petitioner here is arguing that whether or not the final hearing is "prompt" for due process purposes, there is a second right at stake - a right to possession/custody of the property in question for the interim period between the initial seizure and the final forfeiture hearing. In other words, even 6 months would be an awfully long time to wait if you rely on the vehicle that was seized. Since the Barker test is really only concerned with the timeliness of the final hearing, it is simply unable to handle questions like whether or not there is undue hardship in the police keeping custody of a seized vehicle for 6 months, a year, 2 years or more without giving the owner any chance to gain possession until that final hearing occurs. Especially when a state allows an innocent owner defense - as Alabama does - there is a due process right, in the petitioners view, to raise these arguments as a preliminary hearing of some sort that occurs in a much more timely manner.
The three judges on the left definitely were sympathetic to this argument, but so clearly was Justice Gorsuch. Remember, he earlier expressed concern about the question presented in the case and thought it was more appropriate to ask what the Due Process clause actually demands here. That makes sense given his largely textualist approach to the law - why would he just ask what precedent to follow if the precedent wasn't directly on point for these situations and when the right question was really what the Constitution required. To a lesser extent, all of the Justices except for Justice Alito expressed at least some sympathy with both sides. Justice Alito was pretty clearly on the side of the government in believing that a final hearing was good enough.
Numerous Justices - again including the justices on the left and Justice Gorsuch in particular - were also very concerned about whether accepting the Alabama/Federal position would prevent them from addressing due process concerns that involved issues other than just timeliness of the final forfeiture hearing. While Alabama and the Feds made the argument that the Barker test allowed more flexibility, in reality it just allows the same amount of flexibility as the Mathews test but only once you reach the final forfeiture hearing, where the judge in the case would look at the interests of the state in completing the forfeiture and the interests and equities on the property owner's side and make a determination. But there is no real space for questions of addressing appropriate hardship cases or other non-timeliness related process questions if following Barker. This at least opens the door to the Mathews test being applied, which looks at much the same factors as Barker but allows for judges to make the decision on whether a preliminary hearing is appropriate given the context of the case.
There was also an interesting exchange in this case between Justice Alito and Justice Jackson over the boundaries for questioning in this case. Justice Alito - very clearly trying to force the Petitioner's lawyers into a corner, aggressively tried to pin down Petitioner's counsel by getting him to give particular timelines and procedures that he would follow. Justice Jackson rode in to his rescue, however, making clear that such questions were far beyond the question presented in the case and were better left to the lower court to decide when applying the appropriate test, whatever the Supreme Court said it should be. Later in the argument Justice Alito pushed back, saying that he knew some of his colleagues were uninterested in his questions but he nonetheless wanted answers. I imagine Alito and Jackson probably didn't go grab a bite to eat together after the session.
Also interesting was an exchange between Justice Sotomayor and the lawyer for the state of Alabama which got a little rough and tumble. At one point the Alabama lawyer seemed to suggest that the only reason you would want to have a pre-hearing (what he called a "mini-trial") would be to intentionally obfuscate the facts to try to reduce the accuracy of the proceedings by pushing for a speedy resolution - in other words, suggesting that only criminals would be pushing for such fast procedures. Justice Sotomayor just straight up asked "Why?" and then went on a bit of a lecture of her own suggesting that criminals don't make use of these kinds of pre-resolution hearings because they are used only by bona fide innocent owners who are much more frequently than not vindicated by getting their property back. While I largely oppose Alabama's position in this case I have to admire the chutzpah of the attorney - and, to be fair, the accuracy of his statement - when he pushed back in the following exchange:
That's a pretty remarkable clapback, and he's right - Justice Sotomayor didn't really have anything but anecdotal personal experience for what she was asserting, which was absolutely the time of thing that properly should have been presented by the Petitioner and backed up by evidence. She was commenting as an advocate here, not as a judge, and while I admit it begrudgingly, it is an accurate and appropriate clapback.
In the end, I think the Court is going to go against Alabama and the United States here. I think the Chief Justice will get involved to try to keep the ruling as narrow as possible, because the court does not want to open the door to the parade of horribles envisioned by Alabama that would see a flood of extra proceedings and the dismantling of civil forfeiture as an accepted practice ... but in the end I think we'll see a 7-2 decision on the narrow grounds that the more general Mathews test is the appropriate one to use, probably with some significant guardrails on how to use it appropriately to prevent it from swallowing civil forfeiture proceedings entirely. Alito will definitely be on the other side, but you could see a weird split. Thomas could end up siding with the majority in a ruling like this on narrow grounds, perhaps while writing a concurrence. Meanwhile, Kavanaugh or Barrett could end up joining Alito on historical grounds. But I think in the end we'll a 7-2 result in favor of the Petitioner and recognizing the Mathews test as the more appropriate one to use in the modern context of civil forfeiture cases.
