SCOTUS strongly rebukes Indiana forfeiture.

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  • Spear Dane

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    T.Lex

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    Yeah, the more of Thomas's dissents/concur in results I read, the more I agree with him at a philosophical level. I'd love to meet him.

    I wonder if anyone from INGO has ever met him or spent some time with him....
     

    HoughMade

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    Yeah, the more of Thomas's dissents/concur in results I read, the more I agree with him at a philosophical level. I'd love to meet him.

    I wonder if anyone from INGO has ever met him or spent some time with him....

    Y'know, there was this one time back in law school....
     

    SwikLS

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    ok so I read the Thomas opinion yesterday but didnt quite understand it, but reading it again today it seems Thomas is advocating for the court to be less shy about declaring laws unconstitutional under the privileges and immunities clause of the 14th Am. rather than under the due process clause and the effect of this being, if it were to become the norm, would be to curb the judicial activism that's been going on the the lower courts for some time.

    Is that more or less how you legal eagles are interpreting it? or am I way off the mark?
     

    churchmouse

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    ok so I read the Thomas opinion yesterday but didnt quite understand it, but reading it again today it seems Thomas is advocating for the court to be less shy about declaring laws unconstitutional under the privileges and immunities clause of the 14th Am. rather than under the due process clause and the effect of this being, if it were to become the norm, would be to curb the judicial activism that's been going on the the lower courts for some time.

    Is that more or less how you legal eagles are interpreting it? or am I way off the mark?

    Thats my take but man this is a tough rad for a simple guy.
     

    SwikLS

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    Thats my take but man this is a tough rad for a simple guy.

    I remember reading the travel ban case last year and in that opinion Thomas didn't even address the merits of the case. Instead he goes off on this universal injunctions thing that apparently the left uses in the lower courts to push through judicially what they can't do legislatively. So this seems to be a theme for him.
     

    Ruffnek

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    I remember reading the travel ban case last year and in that opinion Thomas didn't even address the merits of the case. Instead he goes off on this universal injunctions thing that apparently the left uses in the lower courts to push through judicially what they can't do legislatively. So this seems to be a theme for him.
    Good, assuming I'm understanding this correctly, haven't finished my coffee yet. I like having people in power that have a "No B.S." policy.
     

    T.Lex

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    ok so I read the Thomas opinion yesterday but didnt quite understand it, but reading it again today it seems Thomas is advocating for the court to be less shy about declaring laws unconstitutional under the privileges and immunities clause of the 14th Am. rather than under the due process clause and the effect of this being, if it were to become the norm, would be to curb the judicial activism that's been going on the the lower courts for some time.

    Is that more or less how you legal eagles are interpreting it? or am I way off the mark?

    Mostly yes. :) That is, you're absolutely correct that he's pointing out potential problems with the court's familiar approach of finding "due process" constitutional issues rather than just coming out and finding something unconstitutional. Part of the due process approach reflects the court's understanding that the best way to keep lower courts under control is to specify how they decide something. Just drawing lines between certain behaviors invites a case-by-case approach that risks clogging the courts, or worse - "we know it when we see it" type decisions.

    So here, if they just said the $42k vehicle was too much, then what about a $40k car? Or $39,799 car?

    I think the part of your observation that may miss the mark (I'll have to read the Thomas concurrence again - I wasn't looking for what you found) is about the curbing judicial activism. As you may be able to tell above, I think looking for substantive unconstitutionality risks greater judicial activism.

    In this particular case, a finding that excessive fines was a privileges/immunities problem could curb legislative zeal for these kinds of forfeitures. Maybe.
     

    SwikLS

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    Mostly yes. :) That is, you're absolutely correct that he's pointing out potential problems with the court's familiar approach of finding "due process" constitutional issues rather than just coming out and finding something unconstitutional. Part of the due process approach reflects the court's understanding that the best way to keep lower courts under control is to specify how they decide something. Just drawing lines between certain behaviors invites a case-by-case approach that risks clogging the courts, or worse - "we know it when we see it" type decisions.

    So here, if they just said the $42k vehicle was too much, then what about a $40k car? Or $39,799 car?

    I think the part of your observation that may miss the mark (I'll have to read the Thomas concurrence again - I wasn't looking for what you found) is about the curbing judicial activism. As you may be able to tell above, I think looking for substantive unconstitutionality risks greater judicial activism.

    In this particular case, a finding that excessive fines was a privileges/immunities problem could curb legislative zeal for these kinds of forfeitures. Maybe.

    I get to the judicial activism conclusion from the reference to Roe vs Wade and Dred Scott and from Thomas' opinion in the travel ban case last year. Also, you could add this recent thing about reviewing NYT vs Sullivan out there in the news.

    I think Thomas sees a potential problem (or a problem that already exists but could get a lot worse) of anti-constitutionalists exploiting our constitutional system to destroy it slowly over time through the courts and he wants to stop it now before it gets worse.
     

    T.Lex

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    I get to the judicial activism conclusion from the reference to Roe vs Wade and Dred Scott and from Thomas' opinion in the travel ban case last year. Also, you could add this recent thing about reviewing NYT vs Sullivan out there in the news.

    I think Thomas sees a potential problem (or a problem that already exists but could get a lot worse) of anti-constitutionalists exploiting our constitutional system to destroy it slowly over time through the courts and he wants to stop it now before it gets worse.

    I think Thomas is/has been concerned with judicial activism for his entire tenure, so I agree with you on that part.

    It just seems odd to think of him advocating some sort of anti-anti-constitutionalist program. That is, I see him more as standing up for the constitution, period.

    Rhetorically, there is a movement among progressives to use historic and contextual arguments about the constitution to promote their own political agenda, but I think that's perfectly legitimate. (And I think Thomas would agree with that, too.) The constitution (and almost all the amendments) was an exercise in progressive governing in its time. It departed from the traditional forms of government, so there will be part of that legacy that remains.

    All sides should promote a greater understanding of the actual constitution, not the individual interpretation of what we think the constitution says. IMHO. :)
     
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