The following post is from Rory Little (UC-Hastings and SCOTUSBlog).
It’s bad enough when a Supreme Court Justice expresses sarcastic impatience with an advocate; even experienced advocates are on edge when they appear in the nation’s highest court. Perhaps even worse when the advocate is a sovereign state’s Solicitor General. But it really is inexcusable when the sarcasm is based on doctrinal error and thus wrong. Here’s why that happened in last week’s oral argument in Timbs v. Indiana.
Background on the Timbs case and the Doctrine of Incorporation
The State of Indiana sought to forfeit Tyson Timbs’ $42,000 Land Rover after Timbs use it to transport small amounts of heroin to drug deals. The Indiana Supreme Court declined to consider whether this violated the Eighth Amendment’s “no Excessive Fines” clause, because the U.S. Supreme Court has never definitively said that that clause is “incorporated” against the states (via the Fourteenth Amendment’s “no state shall” deny Due Process clause). Whether or not Timbs should lose his vehicle, the Question presented in Timbs may seem easy: the doctrine of incorporation, developed only in the 20th Century, is well-accepted. Most recently the Court ruled in 2010 in McDonald that the Second Amendment’s “right … to keep and bear arms” is incorporated and thereby governs state as well is federal actions. Although it is surprising to many, the Bill of Rights was originally intended to apply only against the federal government, and for our first 100 years or more it was said to have no application to state actions. However, after a century of litigation, all rights that are found to be “deeply rooted in this Nation’s history and tradition,” “so as to be ranked as fundamental,” are now said (McDonald) to be “incorporated” against state action as part of due process. This includes most – but see below, not all – of the Bill of Rights provisions.
The “deeply rooted in this Nation’s history and traditions” test might be well-satisfied by the Eighth Amendment’s command that “excessive fines” shall not be “imposed” — although the common practice in the early days of our Union of forfeiting entire ships used to run contraband might give an Originalist pause regarding whether a rule against the forfeiture of vessels of crime is in fact so “deeply rooted.” (As Chief Justice Roberts noted at the Timbs argument “I certainly understand the argument that … with respect to forfeiting instrumentalities of the crime, … [i]t’s always proportionate since it’s the way the crime is accomplished.”)
But one thing is doctrinally clear: not all the rights specified in the Bill of Rights have been incorporated against the States. For some rights, like the “no Excessive Fines” clause, this might merely be an accident of history. (One can find a good discussion of “why hasn’t the excessive fines clause already been incorporated?”