The Volokh Conspiracy

I’m delighted to report that Clark Neily of the Institute for Justice will be guest-blogging this week, about IJ’s “judicial engagement” project. IJ is one of the leading libertarian public interest law firms in the country, and I’ve always much respected their work.

As readers of this blog doubtless know, both conservatives and libertarians are split on the degree to which courts should act aggressively in reviewing legislation for constitutionality, as opposed to deferring to legislative action, especially in the area of so-called “substantive due process.” My sense is that different bloggers on this blog themselves disagree on this subject; and I suspect that I wouldn’t always agree with IJ’s broadest positions on this. But I much look forward to Clark’s explanation of IJ’s views, and I think our readers will find them interesting as well.

On Tuesday, I will be appearing at a Supreme Court preview panel sponsored by the George Mason University School of Law American Constitution Society. The other two presenters are Prof. Michael Seidman (Georgetown) and Prof. Stephen Vladeck (American). The panel will start at 4 PM, and take place in Room 221 at the George Mason law school building. It is open to both GMU students and the public.

Each panelist will focus on one important upcoming case within his area of expertise. I plan to talk about Sackett v. EPA, an important property rights case. The other two panelists will focus on United States v. Jones, a Fourth Amendment case, and Douglas v. Independent Living Center, an important preemption/health care case. We will also, of course, take questions about other issues that the Court is likely to address.

Timothy Sandefur  produces important research on economic liberty. I’m pleased that the Independence Institute, where I work, recently hosted an event for him to promote his book. I’m also happy that he has become part of the team of Cato Institute writers, which I have been part of since 1988. As a contributing editor of Liberty, I have followed his writing since he was a law student. And of course I commend Eugene for inviting him to guest-blog for VC. However, one item in his blogging appears to me to be erroneous:

When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.

I.

Here is a good example: “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution.” Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol’y 1, 3 (2009). Now, whether one accepts or rejects the idea of “substantive due process,” this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution’s text.

The quote is not precisely accurate, and here, the lack of precision leads to a serious error. In the article that Sandefur cites, Nelson Lund and I were discussing and criticizing Roe v. Wade. After a quote from Roe about “the Fourteenth Amendment’s concept of personal liberty,” we then wrote: “This was presumably a reference to the doctrine of substantive due process, which the Supreme Court has never in its entire history tried to derive from the text of the Constitution.”

Our statement as actually written was accurate. Sandefur supplies no example to counter our statement that “the doctrine of substantive due process” (that is, of selective incorporation, unenumerated substantive rights such as those in Meyer v. Nebraska and Roe v. Wade, and so on) has never been the beneficiary of a Supreme Court attempt to derive it from the text of the Constitution.

Instead of showing a case where the Supreme Court did what we had said it did not do (explicate a textual basis for “the doctrine of substantive due process”), Sandefur instead supplies two quotes from Supreme Court cases that did something else.

The first quote, from Loan Ass’n v. Topeka (1874) is little more than an asserted conclusion, albeit one I happen to think is correct. The block quote from Hurtado v. California (1884) provides a litany of things that are not “due process of law”; such as bills of attainder, or special laws enacted to favor or harm a particular individual or group. The Hurtardo quote presents a common nineteenth century view of “due process of law,” with, at least arguably, hundreds of years of roots in American legal understandings. Some of the background of this thinking can be found in Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585 (2009) and James W. Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Comment. 315 (1999). Both authors trace the “due process of law” concept from Magna Carta’s “law of the land” provision, through Dr. Bonham’s Case (voiding a local monopoly on the practice of medicine) and its explication by Edward Coke, and to its understanding by the American colonists. This understanding (which might have been incorrect as a matter of English law) was adopted by the American Framers, and carried forward by antebellum state courts.

So yes, “due process of law,” in a textualist sense, can require judicial action against even laws which may have been enacted under proper procedures, such as special legislation (e.g., taking property from X to give it Y). And, quite obviously, this traditional view of “due process of law,” summarized in Hurtardo, has very little to do with “the doctrine of substantive due process.” The former, text-based view, condemns special legislation; yet you can’t use the modern Supreme Court’s “doctrine of substantive due process” to attack a congressional statute that was enacted for the obvious benefit of one corporation, whereas such a challenge might be plausible under the “due process of law” principle of Hurtardo.

In short, Nelson and I did not voice any objection to the principle of “due process of law” as briefly explicated in Hurtardo. Instead, we claimed that the Supreme Court’s doctrine of substantive due process (which is much more wide-ranging and dubious) has not been derived by the Court from the text of the Constitution. Hypothetically, it might have been possible to so derive at least some of the modern SDP decisions, but I suggest that the absence of any Supreme Court citations from Sandefur rebutting what we actually said is further support for our point.

The Supreme Court has just issued its opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection, a key property rights case. Unfortunately, the most important constitutional issue at stake – what, if any government actions count as “judicial takings” remains mostly unresolved. I summarized the facts of the case here:

Under Florida’s Beach and Shore Preservation Act (the Act), the state government is required to establish “renourishment” projects to restore waterfront land that has become “critically eroded.” Once the projects are complete, the Act gives the state title to any newly dry land that has been cleared as a result of the project’s pushing back the waterline. This deprives waterfront property owners of their previously existing right to ownership of land up to the “mean high water line” (MHWL). This is exactly what happened to the six waterfront property owners in Florida’s Walton County, whose holdings abutted a renourishment project established in the area. The property owners formed a group called Stop the Beach Renourishment, which is the petitioner in this case.

The project established in their area resulted in the creation of additional dry land between the property owners’ holdings and the ocean – land which was claimed by the state. The property owners argued that the state’s acquisition of land inside the MHWL constitutes a taking that requires compensation under the Takings Clause of the Fifth Amendment. The Florida Supreme Court ruled against the property owners, holding that state law did not give them the right to own all property up to the new MHWL created by the project. The property owners now argue, in the U.S. Supreme Court, that the Florida court decision amounts to a “judicial taking” that deprived them of property rights through a sudden and unexpected revision of state law by the state judiciary.

The Supreme Court held unanimously (8-0, with Justice John Paul Stevens recusing himself) that the Florida Supreme Court’s decision against the property owners did not materially alter previous Florida jurisprudence, and therefore ruled against the property owners. However, the Court did not issue any ruling on the far more important issue of what counts as a “judicial taking” under the Takings Clause of the Fifth Amendment.

I. The Four Justice Plurality Opinion.

Justice Scalia’s plurality opinion, signed by the four most conservative justices, holds that judicial takings do occur and implies that federal courts should not be especially deferential to state courts in determining whether one has happened:

States effect a taking if they recharacterize as public property what was previously private property…. The Takings Clause… is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor…. There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat…

Our precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary. [emphasis added]

The plurality says that a judicial taking occurs any time a state court “declares that what was once an established right of private property no longer exists,” and should be treated the same as any other taking by a state government. The fact that it was done by the judiciary rather than by legislature or executive should not matter.

The plurality’s approach strikes me as sound. However, it did not get the support of a majority of justices.

II. Justice Kennedy’s Concurrence.

In a concurring opinion, Justice Anthony Kennedy (joined by Justice Sonia Sotomayor) argues that these kinds of cases should be analyzed under the Due Process Clause of the Fourteenth Amendment rather than under the Takings Clause of the Fifth Amendment. He contends that a “The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is ‘arbitrary or irrational’ under the Due Process Clause.”
Kennedy does not make clear what counts as an “established property right” that is a “legitimate expectation of the owner.” The reference to the “arbitrary or irrational” standard suggests that only the most extreme departures from previous precedent would count as judicial takings.

Since Kennedy is likely to be the key swing voter on this issue (as on many others), his position in future cases will be very important. It is also very unclear.

Kennedy makes a variety of arguments in defense of his claim that the Due Process Clause is a better hook for these kinds of claims than the Takings Clause. None of them strike me as persuasive. This one is probably the most important:

The usual due process constraint is that courts cannot abandon settled principles…..

But if the state court were deemed to be exercising the power to take property, that constraint would be removed. Because the State would be bound to pay owners for takings caused by a judicial decision, it is conceivable that some judges might decide that enacting a sweeping new rule to adjust the rights of property owners in the context of changing social needs is a good idea.

The idea, then, that a judicial takings doctrine would constrain judges might just well have the opposite effect. It would give judges new power and new assurance that changes in property rights that are beneficial, or thought to be so, are fair and proper because just compensation will be paid.

Kennedy’s point is greatly overstated. If judges enact “sweeping new rule[s]” that amount to takings under federal constitutional law, those rulings would probably be invalid under state law as well. In virtually all states, the power to take property is reserved to the legislature. By definition a judicial taking is one that is not authorized by the legislature. Even if a judicial ruling could be a taking under federal law without requiring legislative authorization under state law, legislatures are likely to be vigilant about forestalling and reversing judicial rulings that end up costing them large amounts of money – if only because legislators would probably prefer to spend the funds on their own favorite programs.

Strangely, even as he argues against applying the Takings Clause to these issues, Kennedy leaves open the possibility that it might potentially be applicable in some future judicial takings case.

Finally, Justice Breyer (joined by Justice Ginsburg) argued that the issue of what counts as a judicial taking need not be resolved in this case and refuses to take a position on the issue.

III. The (Very Uncertain) Bottom Line.

In sum, we know that at least six justices believe that at least some judicial actions qualify as unconstitutional takings (even if only under the Due Process Clause). We don’t, however, know much about what the relevant standards for identifying judicial takings are. If Justice Kennedy turns out to be the key swing voter in future cases, it’s possible that state courts will get a lot of deference, since only “arbitrary and irrational” judicial deprivations of previously established property rights would be overturned. However, I’m far from certain that I’m interpreting Kennedy’s vague statements correctly.

Property rights advocates avoided the worst-case scenario: a Supreme Court ruling holding that there is no such thing as a judicial taking that requires compensation under the Constitution. Whether they have won anything more than that remains to be seen. As Ben Barros at Propertyprof Blog puts it, “we will see a lot of litigation on these issues in the near future.”

IV. The Role of Justice Sotomayor.

Commentators such as Josh Blackman and Ben Barros point out that Justice Sotomayor joined Kennedy’s opinon rather than Breyer’s and suggest that this means she may be more supportive of property rights than I previously thought. However, for reasons noted above, it’s far from clear whether Kennedy’s approach really provides much in the way of protection for property owners. It’s also not clear whether that approach will turn out to be more or less protective than whatever rule Breyer and Ginsburg endorse in a future case where they are forced to confront the issue.

We also don’t know whether Sotomayor will continue to agree with Kennedy when and if the latter fleshes out some of the extremely vague points in his opinion. Kennedy and Sotomayor might turn out to have different interpretations of what counts as “a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner.” They might also disagree on the meaning of “arbitrary and irrational,” as applied to judicial takings cases.

UPDATE: In addition to the analyses by Barros and Blackman, Ilya Shapiro and property rights specialist Tim Sandefur have also given their takes on the case. Both are somewhat more optimistic about the implications of the Court’s decision for protection of property rights than I am.

In today’s Stop the Beach opinion, Justice Scalia (joined by the other three conservatives) criticizes Justice Kennedy for arguing that what Scalia consider “judicial takings” should instead be handled as violation of the Due Process Clause:

The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liberties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). [EDITOR: But cf. Schware v. Board of Examiners, 353 U. S. 232 (1957) h/t Tim Sandefur]

The “logically or not” part gets me; Justice Scalia is not a lower court judge. If he think it’s not logical to strictly segregate economic and non-economic rights, he has the power to do something about it.

Imagine, instead, Justice Kennedy writing this sentence in an abortion case, in response to Scalia:

The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process include the right to have an abortion.

Roe has been around for thirty-seven years now, and it’s high time the conservative Justices stop pretending that a decades-old opinion, on which there is huge cultural reliance (as sexual mores have changed in part to reflect the availability of abortion) is somehow less “precedential” than equally bad opinions from the 1930s, 40s, and 50s.

Of course, Scalia does have an answer to this analogy–we should avoid any decision reminiscent of the dreaded “Lochner era”: “Justice Kennedy’s language … propels us back to what is referred to (usually deprecatingly) as “the Lochner era.”

And here’s my response to Scalia, from the second to last paragraph of my forthcoming “Rehabilitating Lochner:”

Lochner serves as a uniquely important negative exemplar of constitutional error in constitutional law scholarship, op-ed columns and blog posts, and even in Supreme Court decisions. When the Justices (and others) use Lochner this way, as shorthand for what they consider the “activist” sins of their opponents, they are substituting empty rhetoric for meaningful constitutional argument.

Thanks to Josh Blackman for the tip.

The Institute for Justice, a prominent libertarian public interest law firm, has an important new report detailing the many abuses of property rights in the asset forfeiture system. Here are a few of the key findings:

In most states and under federal law, law enforcement can keep some or all of the proceeds from civil forfeitures. This incentive has led to concern that civil forfeiture encourages policing for profit, as agencies pursue forfeitures to boost their budgets at the expense of other policing priorities. These concerns are exacerbated by legal procedures that make civil forfeiture relatively easy for the government and hard for property owners to fight. For example, once law enforcement seizes property, the government must prove it was involved in criminal activity to forfeit or permanently keep it. But in nearly all states and at the federal level, the legal standard of proof the government must meet for civil forfeiture is lower than the strict standard of “beyond a reasonable doubt” required for criminal convictions…..

[I]n most places, owners bear the burden of establishing their innocence. In other words, with civil forfeiture, property owners are effectively guilty until proven innocent….

Finally, federal civil forfeiture laws encourage abuse by providing a loophole to law enforcement in states with good laws for property owners: “equitable sharing.” With equitable sharing, state law enforcement can turn over seized assets to the federal government, or they may seize them jointly with federal officers. The property is then subject to federal civil forfeiture law—not state law. Federal law provides as much as 80 percent of the proceeds to state law enforcement and stacks the deck against property owners. Thus, the equitable sharing loophole provides a way for state and local law enforcement to profit from forfeitures that they may not be able to under state law.

The authors also provide the first comprehensive survey of state asset forfeiture laws, giving each a “grade” on the A to F scale. They find that most of them provide little if any protection for innocent property owners:

Only three states—Maine, North Dakota and Vermont—receive a combined grade of B or higher. The other 47 states all receive Cs or Ds.

• Most state civil forfeiture laws provide little protection to property owners. Six states receive an F and 29 states receive
a D for their laws alone. Lax federal laws earn the federal government a law grade of D-.

• Eight states receive a B or higher for their laws: Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont. But extensive use of equitable sharing pulls down the final grades of five of those states: Indiana (C+), Maryland (C+),
Missouri (C+), North Carolina (C+) and Ohio (C-).

• The lowest-graded states overall, combining both poor laws and aggressive use of equitable sharing, are Georgia,
Michigan, Texas, Virginia and West Virginia.

I have previously criticized the asset forfeiture system here, here, and here, pointing out how it often violates constitutional property rights under the Due Process Clause. The Supreme Court had an opportunity to curb some of the more extreme violations of constitutional rights in Alvarez v. Smith, a case it ended up dismissing on procedural grounds.

CONFLICT OF INTEREST WATCH: As I have noted in previous posts involving IJ, I have written several pro bono amicus briefs for them in the past and was an IJ summer clerk during the summer of 1998, after my first year in law school.

Radley Balko has an interesting article in Reason detailing the many abuses of the asset forfeiture system, which often allows police to seize property without compensation – even in cases where the owners have not been convicted of any crime:

Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture. And under many state laws, the situation is even worse: State officials can seize property without a warrant and need only show “probable cause” that the booty was connected to a drug crime in order to keep it, as opposed to the criminal standard of proof “beyond a reasonable doubt.” Instead of being innocent until proven guilty, owners of seized property all too often have a heavier burden of proof than the government officials who stole their stuff.

Municipalities have come to rely on confiscated property for revenue. Police and prosecutors use forfeiture proceeds to fund not only general operations but junkets, parties, and swank office equipment. A cottage industry has sprung up to offer law enforcement agencies instruction on how to take and keep property more efficiently.

As I have argued elsewhere, many such seizures are a fairly blatant violation of the Due Process Clause of the Fourteenth Amendment, which bars state seizures of “property” without “due process of law.” In many cases, the authorities hold on to the seized property for months at a time without giving innocent owners any opportunity to contest the seizure whatsoever. If that isn’t deprivation of property without “due process,” it’s hard to see what is. The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out the case on procedural grounds. Hopefully, the issue will make its way back to the Supremes, and they will see fit to give innocent property owners at least some protection for their constitutional rights.

I am not optimistic that the political process will protect these rights on its own. As Radley explains, police departments and prosecutors in many areas have a vested interest in perpetuating these practices. In addition, most of the people whose property is seized in this way are relatively poor and lacking in political influence. There have been a few modest reforms over the years. But for reasons Radley outlines, they have only addressed a small part of the problem.

The Supreme Court has dismissed as moot, Alvarez v. Smith, a potentially important property rights case [HT: Josh Blackman]. As I explained in this Findlaw column, Alvarez involved an important issue in constitutional property law. The plaintiffs were property owners whose cars or other possessions had been seized by Chicago police and held for many months or years at a time, without the owners having any opportunity to challenging the seizure in any kind of judicial hearing, and in some cases without any criminal charges being filed against the owners by the government. The car owners argued that these seizures were a violation of the Fourteenth Amendment’s guarantee that states cannot seize private property without “due process of law.”

The Court decided that the case was moot because the state had settled the case and returned all three cars to their owners prior to oral argument, and also reached settlement agreements addressing the other seized property. This is an understandable ruling. Far less defensible is the Court’s decision to vacate the Seventh Circuit Court of Appeals opinion that ruled in favor of the property owners. After all, the case clearly was not moot at the time the Seventh Circuit issued its decision in 2008. As Justice Breyer’s opinion for the Court points out, the Supremes don’t normally vacate a lower court opinion when a case is dismissed as moot because it has been settled. In this case, however, the Court relied on the rule that lower court opinions usually are vacated if the settlement occurred as a result of “happenstance” for reasons unrelated to the existence of a federal case. This rule strikes me as a dubious rationale for vacating opinions that were issued before any settlement occurred. Whatever the parties’ motives for settling later, the Seventh Circuit clearly had jurisdiction over the case at the time it was decided, and therefore its opinion should stand. Moreover, it is difficult to believe that the parties completely ignored the existence of a federal case in reaching their settlement agreements, since those settlements occurred after the Seventh Circuit had ruled in favor of the property owners.

Be that as it may, the Supreme Court’s decision not only avoids resolving the underlying constitutional issue, it also allows Illinois’ egregious Drug Asset Forfeiture Procedure Act (DAFPA) to stand, since the Court vacated the lower court decision striking it down. As I explained here, DAFPA allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without allowing the owners to file for hearing challenging the seizure. Even after they are allowed to file, more months may pass before a hearing is actually held (over a year’s delay in all for some of the Alvarez plaintiffs). This is true even if the owners in question are never charged with any crime (as the three car owners involved in Alvarez were not), and even if the police don’t provide any proof that valuable evidence would be lost if the property is returned to the owners.

Of course, things could have been worse. When the Court initially agreed to hear this case, I thought it possible that it had decided to do so in order to reverse the Seventh Circuit on the merits. The fact that there was a serious likelihood that the Court might uphold this fairly blatant violation of Due Process Clause property rights is yet another indication of the second class status of constitutional property rights in the Court’s decision-making.

I suspect that this issue will eventually come before the Court again. As a result of the War on Drugs, these kinds of property seizures are common in many parts of the country. In some jurisdictions, police departments have incentives to seize property first and ask questions later, because they get to auction off property taken in drug investigations that lead to convictions, and keep the profits. Often, they can do this even if the property in question belonged to an owner who wasn’t convicted of anything himself.

The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture…

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern….

We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.

The points emphasized in the WSJ editorial are similar to those I and others have made previously. However, the WSJ piece is still noteworthy because it shows that at least some of the national media have finally begun to give the case the attention it warrants. It’s also telling that even the generally pro-law enforcement WSJ editorial page isn’t willing to endorse the government’s position in this case.

Findlaw has just posted a column I wrote on Alvarez v. Smith, an important Fourteenth Amendment Due Process Clause property rights case that was heard by the Supreme Court today:

Today, the Supreme Court hears Alvarez v. Smith, an important case that will affect the constitutional property rights of many people around the country but has failed to attract the attention it deserves.

In Alvarez, the federal Seventh Circuit Court of Appeals ruled that it was unconstitutional for Chicago police to seize cars and other property and hold it for many months at a time a without giving the owners any chance challenge the seizure. The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without any kind of legal hearing. This rule applies even to property owned by completely innocent persons who simply had their possessions caught up in a drug investigation through no fault of their own… The three car owners involved in Alvarez were never even charged with a crime, much less convicted….

Laws like DAFPA pose a serious danger to the property rights of innocent people caught up in the War on Drugs. In many jurisdictions, police departments are allowed to auction off property seized in drug investigations and keep the profits, giving them a clear incentive to seize cars first and ask questions later. Moreover, many of the people whose cars are seized are poor or minorities. They often lack the political power necessary to persuade police to release their property without judicial intervention.

The Court of Appeals ruled that DAFPA violate the property owners’ rights under the Due Process Clause of the Fourteenth Amendment. It should have been an easy case. After all, the Clause requires that states must not “deprive any person of life, liberty, or property, without due process of law.” One can certainly argue about how much process is “due” in any given situation. But surely it is a violation of the Clause for the state to deprive an innocent citizen of valuable property for many months without any judicial process whatsoever….

I previously wrote about Alvarez here and here. In this post, I wrote about then-Judge Sonia Sotomayor’s excellent opinion in the very similar case of Krimstock v. Kelly.

My column was written before the oral argument transcript became available. Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented. Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit, which I feared might happen. The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits. They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing. At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly. In both cases, obviously, it would be dangerous to predict the justices’ votes based on oral argument questions, since some justices might pose questions that build on premises they don’t necessarily agree with.