Tag: Thomas

SCOTUS Overrules 40-year-old Precedent on State Immunity

On 13 May 2019, the US Supreme Court ruled, 5-4, in the case of Franchise Tax Board of California v. Hyatt, 587 U. S. (2019), that a State could not be sued in a Court of another state. The case, although relates to a minute procedural rule, is significant because it shows the willingness of the majority of the Court to overrule a 40 year-old precedent if it stands in the way of searching for the original meaning of the US Constitution.

In Franchise Tax Board of California v. Hyatt, 587 U. S. (2019), the Majority Opinion, delivered by Justice Thomas, expressly overruled Nevada v. Hall, 440 U.S. 410 (1979) which had held that the Constitution did not bar suits against one State in a Court of another State, even though at the time of the ratification of the Constitution, States were immune from such actions.

The Majority Opinion in Franchise Tax Board of California v. Hyatt, 587 U. S. (2019) brings together all of the hallmark traits of Justice Thomas’s judicial philosophy. First of all, the case overrules a 40 year-old precedent showing his limited interest in stare decisis. On this issue, he claims:

But stare decisis is “‘not an inexorable command,’” Pearson v. Callahan, 555 U. S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostini v. Felton, 521 U. S. 203, 235 (1997). […] Nevada v. Hall is irreconcilable with our constitutional structure and with the historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts.” (pp16-18).

Secondly, the opinion is based solely on the historical approach to the relevant legal principles. In fact, throughout his opinion, Justice Thomas talks about nothing else but history and, in doing so, he goes back even further than the time of the ratification of the Constitution:

The common-law rule was that “no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.” 1 W. Blackstone, Commentaries on the Laws of England 235 (1765) (Blackstone).” (p7)

Thirdly, despite the fact that Justice Thomas is believed to always employ strictly literal interpretation of the Constitution, the opinion shows his willingness to recognise unwritten constitutional doctrines, so long as they do not conflict with the prevailing understanding at the time of the founding. On this issue, he argues that:

There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U. S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U. S. 731, 755–758 (1982); and the President’s removal power, Myers v. United States, 272 U. S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.” (p16)

The opinion delivered by Justice Thomas is in no way different from his other opinions. They are all based on the same principles. However, this time, his opinion was the Majority Opinion – he was not in dissent, nor did he have to submit a separate concurring opinion, which he often feels compelled to do. With the recent changes to the composition of the Supreme Court, it seems plausible that Justice Thomas, or at least his judicial philosophy, will be seen more and more in control of the Court’s precedents.

The Majority Opinion was supported by Justices Alito, Gorsuch, Kavanaugh and Chief Justice Roberts. The four liberal Justices dissented. In his dissenting opinion, Justice Breyer also takes a historical approach to the doctrine of State immunity, but, above all, he points to the effect of stare decisis:

“In any event, stare decisis requires us to follow Hall, not overrule it. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854–855 (1992); see also Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___–___ (2015) (slip op., at 7–8). Overruling a case always requires “‘special justification.’” Kimble, 576 U. S., at ___ (slip op., at 8). What could that justification be in this case? The majority does not find one.

“The majority believes that Hall was wrongly decided. But “an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.” Kimble, 576 U. S., at (slip op., at 8). Three dissenters in Hall also believed that Hall was wrong, but they recognized that the Court’s opinion was “plausible.” 440 U. S., at 427 (opinion of Blackmun, J.). While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.(p10)

“Perhaps the majority believes that there has been insufficient reliance on Hall to justify preserving it. But any such belief would ignore an important feature of reliance. The people of this Nation rely upon stability in the law Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay” (pp12-13)

SCOTUS reins in civil asset forfeiture

On 20 February, the US Supreme Court unanimously held, in the case of Timbs v. Indiana, 586 U.S. ___ (2019), that the prohibition on excessive fines contained in the 8th Amendment applied to States (as well as the federal government) and prevented Indiana from confiscating a Land Rover worth $42,000 just because it had been used during a drug transaction. The judgment is significant because it is a rare case of the Court limiting States’ civil asset forfeiture powers but also because of its discussion of the Bill of Rights’ selective incorporation process.

Civil asset forfeiture is a legal tool used by law enforcement to confiscate private property from persons suspected of illegal activity without necessarily charging them with any wrongdoing. According to some estimations, between 2011 and 2014, local and state agencies confiscated $2.5 billion in approximately 62,000 cash seizures conducted ‘without search warrants or indictments’ (The Washington Post). When it comes to the federal government, in 1985, the Justice Department’s Assets Forfeiture Fund brought in $27 million but by 2017, that figure skyrocketed to $1.6 billion (The Atlantic). In Timbs v. Indiana, 586 U.S. ___ (2019), Justice Ginsburg, writing for the majority, referred to the protection from excessive fines as a historically important safeguard recognised as early as the Magna Carta. However, the effective application of the Excessive Fine Clause of the 8th Amendment is a novelty in the Court’s jurisprudence as the Court found a violation of the Excessive Fine Clause for the first time in 1998, in United States v. Bajakajian524 U.S. 321 (1998).

The 8th Amendment prohibits, among other things, ‘excessive fines [being] imposed’. In Waters-Pierce Oil Co. v. Texas212 U.S. 86 (1909), the Supreme Court held that excessive fines were defined as fines ‘so grossly excessive as to amount to a deprivation of property without due process of law’. In Austin v. United States, 509 U.S. 602 (1993), the Court ruled for the first time that the Excessive Fines Clause applied to civil asset forfeiture conducted by the federal government, but the case was silent on its potential application to States’ actions.

Originally, just as the other Amendments constituting the Bill of Rights, the 8th Amendment was meant to apply only against the federal government. After the Civil War, with the enactment of the 14th Amendment, the Courts began to apply various safeguards contained in the Bill of Rights against States as well as the federal government. Throughout that time, the Courts usually invoked the Due Process Clause of the 14th Amendment as the provision rendering the Bill of Rights applicable against States. In Timbs v. Indiana, 586 U.S. ___ (2019), 7 Justices, in the opinion written by Justice Ginsburg, held that the 8th Amendment applied against the State of Indiana by virtue of the Due Process Clause. On the other hand, Justice Thomas, while concurring in the outcome of the case, produced a separate opinion on the issue of the selective incorporation where he explained that the application of the Bill of Rights against States was possible by virtue of the Privileges or Immunities Clause of the 14th Amendment, rather than the Due Process Clause. Justice Neil Gorsuch, who joined the majority opinion, also wrote a concurring opinion, agreeing with Justice Thomas on the issue of the selective incorporation.

The ruling is expected to have a considerable impact on the the use of civil asset forfeiture as it establishes a strong protection against its abuse, now applicable to both the federal and States’ governments. The case also signals potential future discussions among Justices on the effect of the 14th Amendment on the selective incorporation.