What was not decided was if the seizure of an expensive Land Rover was excessive, which the state court now did. As I spelled out in a comment at the link, I found this dubious. This is one of those cases where libertarian talk makes me feel a tad bit conservative. Unlike the partial dissent there, I'm not going start talking about the evils of heroin. But, this guy did repeatedly buy it, using his vehicle in the process. Forfeiture cases have resulted in various injustices. This doesn't really seem to be one of them.
But, if the multi-factor test used here can result in justice in more sympathetic cases, fine enough. This case also shows that the Supreme Court ruling often is not the end of the line. There regularly is more things to decide as here. Also, state law questions can still be open, which results sometimes relief for a defendant that loses in the U.S. Supreme Court.
Kagan v. Kavanaugh: Kagan "owning" Kavanaugh in the ACCA case that dropped has received some commentary (including the latest Strict Scrutiny Podcast, Leah Litman particularly amused -- she enjoys that sort of thing PLUS she loves ACCA anyway and the defendant won to boot). Kagan in general is a good writer (Roberts is too; Breyer and Sotomayor often are mechanical though Sotomayor can shine separately). She also from early on had the snark, at times perhaps a bit much. YMMV.
I do wonder how other nations view some of our court opinions. They can be somewhat personal, especially as they spar with each other. Sometimes, that gets a bit much, even if you like the results. A liberal dissent can be over the top, even counterproductive, suggesting the majority means more than it does. And, just lashing out at it. It also might come off as just hopeless, a woeful voice that cries from the wilderness. Brennan had that quality at times.
This comes off worse if the dissent is just wrong. But, personally, it is not great even if it is right. There is a sort of cheap thrill that might lead you to feel bad about yourself in the morning. Did Kagan go too far? Who is to say? One thing that is flagged by the article -- though the guy is usually pessimistic anyway -- is the idea that it's a sign Kagan is done trying to satisfy Kavanaugh. I'm sure that will be a continuing effort, some cases left where she can help craft a five person majority (at least). Maybe not so much in the big cases remaining. We shall see.
One area that Kagan has joined the remaining liberals more often are death penalty cases. She often did not do so particularly in the denial of cert. or stay type cases. Now, she is even starting to do so there. The federal execution cases and a few particularly blatant cases where you might have had a five justice majority of Kennedy and the liberals in one or more cases have arisen there where she dissented. She as the article notes has brought the bite in more than one full court opinion/dissent too.
The sixth vote of the currently tainted Court changes the dynamic here, and there are also signs that it will show more teeth in the 2021 Term. And, the same with the liberals. A final note is that the Kagan opinion in the ACCA case was a plurality with Gorsuch joining in while Thomas concurred separately. This seemed to bother Kavanaugh too, which is not really surprising since hey, Thomas is a conservative. And, Thomas in a brief concurrence basically took a pragmatic approach (like who is he? Breyer?), admitting a precedent was in his view wrongly decided, but basically for now ruling another way would make things too hard for the lower courts.
No wonder Kavanaugh was miffed. Kagan also could bring the snark since she only had to keep four on board, and Gorsuch likes to have some fun anyways. (He at times seems to be having a ball ... why shouldn't he? He stole it fair and square apparently and he's not going anywhere.) Maybe, she would have toned it down if Roberts or someone else was on board. This sort of guesswork is something of a parlor game, fun it might be.
On that level, I'll end this preview of the start of the final sprint -- over twenty opinions in less than that many days (it would be novel for them to linger into July) -- with a reminder that it's fun and interesting to hypothesize about court politics, but it's best to do so with a grain of salt. People often lay it on a bit too thick. On that front, I like Kate Shaw on Strict Scrutiny -- she's surely liberal and all (hey, she's the wife of Chris Hayes), but is somewhat more restrained than her partners.
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New York Court of Appeals: It isn't as important as the U.S. Supreme Court, and fourteen years is not life tenure, but Gov. "fuck this guy never is going to be impeached, let's just fucking admit it" Cuomo pissed off liberals some more with his choices to fill some vacancies to the highest state court (the "Supreme Court" is the lowest). I noted the voters' job of choosing Delegates to the Judicial Convention 80th Assembly District. Whatever they do. But, Cuomo has a lot of power here.
The two latest nominees received pushback, especially the prosecutor. The New York legislature had some end of term business. Perhaps, wanting to get things done, the criticized prosecutor was quickly processed with my own Sen. Biaggi from what I can tell being the only one who voted against her in committee. The nominee resisted actually talking about her record, deeming policy questions not appropriate for nomination hearings. Sounds familiar. She criticized people for calling her out for being a prosecutor, though these days there are progressive prosecutors. It is her type.
[An article suggests only one of the two got pushback but one of those links came out against both. The prosecutor did get more opposition though the Democrats in the legislature -- including someone running for Manhattan borough president (Brad Holyman) -- were weak willed in providing much opposition. Gov. Cuomo nominating her late helped.
If the article is right in basically calling out BH for trying to have it both ways in a key battle, it's a rather dubious move in a race with various candidates. One criminal justice advocate was upset she voted for him absentee when she found out how he acted. We should be able to expect more of NY Dems in these cases.]
I rely on others here to judge the quality of these nominees, including the former prosecutor. I trust Biaggi's judgment as a whole there as well as other criminal justice warriors who are critical. It is clear to me at least that it was appropriate to get the opinions of the nominees, the artificial division of judge and other officer here fictional. And, recent years particularly has shown the importance of local and state government in these areas. But, it's true in general too.
I have rarely had much of an occasion to deal with New York courts -- one exception were same sex marriage matters -- but as with the pending Manhattan DA race, they are clearly important. And, these nominees underline, especially with full Democratic control of the state legislature, the limitations of the current governor.
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