SCOTUS Watch: Opinion Day

David S. Mao has been named the new Librarian of the Supreme Court of the United States. Gorsuch wants to add a book about how we have too many laws.

Opinions 

The two opinions released on Thursday were largely low temperature. 

The Internet allows us to follow along somewhat with opinion announcements, including a "live blog" at SCOTUSBlog. People have also provided live coverage of the New York Trump criminal trial. 

Nonetheless, it only goes so far. We should have audio and video of opinion announcements. Some people think they are a waste of time. SCOTUS still thinks they are a good idea even if there was a report that Gorsuch wanted to stop doing them. Share it with the class, please. 

[civil forfeitures]

Sotomayor for the liberals did show some passion in dissenting in a civil forfeiture case involving the right to have a hearing before the seizure of a car. The dissent noted that such seizures can harm marginal groups. Also, some localities have incentives to seize property to fill their coffers. 

(The dissent was one of those opinions that look beyond the immediate case to discuss wider concerns. Sotomayor and Jackson have done this regularly in cases involving civil rights and criminal justice.)  

The dissent argued that the majority opinion went too far in limiting the types of hearings that would be required. Mark Joseph Stern flagged on Twitter how Kavanaugh played fast and loose with precedents to make his case. This included, as noted by Sotomayor, using a comment during oral argument to determine what one of the cases meant. 

Gorsuch (joined by Thomas) concurred while spending almost as much time as the dissent to discuss historical processes. They were concerned about new procedures threatening property rights. 

The possible abuses of civil forfeiture have joined liberals and libertarians (plus a few conservatives) over the years. The opinions show the potential for a better result, perhaps in a case with better facts. These cases are carefully chosen for review. So, take that last part with a healthy grain of salt.  

Two opinions, one much more than the other, flagged the problems with civil asset forfeiture. The government takes property without due process, using lower standards than necessary to prove a crime. 

Some of the responses are a general "police are horrible" or the like. I find that sort of open-ended thing of limited value. Try to address the issue at hand. 

ETA: To emphasize that last point, Chris Geidner (strong liberal) notes all nine justices supported a "timely" hearing. Five underlined the current policies are problematic. 

The specific case involved an alleged "innocent owner" (two people lent cars to people who allegedly committed drug crimes, apparently without their knowledge) unlike various other civil forfeiture cases. 

(Shades of an old case where a wife had half-ownership in a car and her husband used it to have sex with a prostitute.)  

The majority notes the specific litigants took a long time to bring their claim. The case was more of a vehicle than a clear injustice in the view of various members of the majority. Nonetheless, the result is a general rule that no hearing is necessary before the car is seized.

These are the details in this specific case and a general blunderbuss approach of the evils of the police etc. provides more darkness than light in various respects. Yes, sometimes, we should think of the wider picture. But, that also can be misleading, especially in case-by-case analysis. 

[copyrights]

Kagan wrote the second with Gorsuch dissenting (with Thomas and Alito). This case involved a copyright claim and took twelve pages in total. The litigation involved the timeliness of a claim, here complicated by two prison stints. The case turns on technical issues that courts rightly handle.  

Beyond the Courts

Slate Magazine has a collection of articles about the problems with originalism. Originalism appeals to "original understanding" (phrased and determined in various ways) as "the law" (as if there isn't any other way) as well as a way to restrain judges (not the same thing; it also doesn't work).  

My long-held belief is that we need to apply the Constitution as we understand it today, using all that we understood up until today. This is a fashion of "common law constitutionalism." It is not mere "policy making." Originalism is impractical and misguided even if you try to "do it right." 

The start of a solution is for the public to realize the problem and believe there is an alternative. The Constitution must be enforced by everyone. Not just the courts. Sometimes, the courts are wrong. Plessy v. Ferguson did not permanently void equal protection of the laws. 

Upcoming

Order List on Monday. Another conference is next Thursday. Also, there is now a flag that more opinions might be released. I expect the conference/opinion day on Thursday schedule will continue regularly until late June.