With the addition of newly sworn-in Associate Justice Brett Kavanaugh, the Supreme Court convened with a full nine-justice bench this week for the first time since Anthony Kennedy retired in June. It also convened with a 5-4 conservative ideological majority for the first time in half a century.
After a bitter and partisan confirmation battle, Kavanaugh’s tenure began anticlimactically with three cases revolving around federal sentencing law. One sought to determine what counts as “violent” in criminal sentencing, and another grappled with whether mobile homes, cars or boats count as occupiable structures under the federal definition of burglary.
And while those are unlikely to spur much ideological debate, there are four cases on the horizon this term that will test the rightward ideological shift on the court and give an indication of the bench’s leanings for years to come.
On Wednesday, the justices hear arguments in Nielsen v. Preap, a class action suit that asks how quickly the Department of Homeland Security needs to act when starting deportation proceedings against immigrants with criminal records.
Lead plaintiff Mony Preap is a Cambodian refugee who became a lawful permanent resident of the U.S. in 1981. Preap was picked up by immigration authorities in 2013, seven years after serving time for misdemeanor marijuana possession.
Generally, when ICE takes noncitizens (including Green Card holders) into custody, a deportation officer decides whether that person can post bond and return home while their deportation case plays out. But if they’ve committed certain types of crimes, like drug possession, they’re subject to mandatory detention, and detained indefinitely in immigration jail without a bond hearing during deportation proceedings, which can sometimes take years.
DHS argued that even though Preap had already served time for his drug conviction, it was a deportable offense, so he was subject to mandatory detention since federal immigration law authorizes DHS to indefinitely detain noncitizens “when the alien is released” from custody. Now, the justices will decide whether “when” means immediately after serving time, or at any point after a sentence ends.
“Since detention is used as a tool to get people to agree to deportation prior to their hearing, and since detention also interferes with their ability to make a compelling case against removal in immigration courts, more long-term resident immigrants with strong claims to remain the U.S. will be detained and under increasing pressure to depart if the government wins this case,” said Jennifer Chacón, a law professor at UCLA who specializes in immigration and constitutional law.
Russell Bucklew was sentenced to death in Missouri for a 1996 murder, kidnapping, and rape. His execution was scheduled for last March, but the justices voted to put it on hold in order to hear his case, with now-retired Justice Kennedy casting the deciding vote to stay the execution.
Missouri executes prisoners by lethal injection, the most common execution method in the U.S. But Bucklew was born with a rare medical condition that covers his head, neck, and throat in untreatable blood-filled tumors. He argued that an injection could rupture the tumors, causing him to hemorrhage and potentially choke on his own blood, and asked to be executed in a gas chamber instead.
Lower courts found that Bucklew didn’t provide enough medical evidence of unnecessary suffering, and didn’t suggest an alternative method that would significantly lower the risk of pain, which are both required by Supreme Court precedent. Bucklew v. Precythe asks whether the Eighth Amendment, which bans cruel and unusual punishment, grants death row inmates the right to prove that a certain execution method would constitute torture, and whether an inmate should be required to present an alternative method.
“Even if a particular method of execution is not cruel and unusual to everyone, if it inflicts unusual pain on a specific inmate, that’s a constitutional violation,” said David Cole, the legal director of the ACLU, which filed an amicus brief in support of Bucklew. A ruling against Bucklew could make it easier for states to deny concessions to death row inmates with medical conditions. It will be argued on Nov. 6.
Civil Asset Forfeiture
Timbs v. Indiana is also an Eighth Amendment case, but not about the death penalty. It deals with something called civil asset forfeiture, a tactic that lets cops seize property – like cars, money, or real estate – that they say was involved in a crime. Police can then sell the property and use profits to fund their departments.
Tyson Timbs, the petitioner, was sentenced to six years for felony drug dealing in Grant County, Indiana, where that offense carries a maximum fine of $10,000. The state also wanted to confiscate his $42,000 Land Rover, which they said he used to transport drugs, but a trial court ruled that since the car was worth more than four times the maximum fine for Timbs’ crime, seizing it would violate the part of the Eighth Amendment that bans excessive fines.
The Indiana Supreme Court said that taking the car was legal under state law, and that the U.S. Supreme Court hasn’t clearly ruled that the amendment’s excessive fines clause applies to all states under the 14th Amendment, which guarantees laws apply equally to people living in every state. Timbs asks whether the excessive fines clause does indeed apply equally in every state.
The federal government seized nearly $5 billion worth of property via asset forfeiture in 2014 according to the Institute for Justice, and states seized hundreds of millions more.
“State and local governments are increasingly using civil forfeiture, and imposing punishing fines and fees, in order to fund their operations,” said Wesley Hottot, an expert in civil asset forfeiture at the Institute for Justice who also represents Timbs. “Unless there is a limit on this power — what the Excessive Fines Clause was meant to be — you will see more policing for profit.”
If the high court sides with Timbs, whose case will be argued on Nov. 28, it could curb the practice across the country.
The justices will also rule on a 7-year-old antitrust suit against Apple. Back in 2011, a group of iPhone buyers claimed that Apple squashed competition and inflated prices on its iPhone by banning third-party apps from its App Store and signing a five-year exclusive contract with AT&T. Since a court struck the latter claim down in 2013, the lawsuit now focuses solely on the App Store.
The buyers argue that by forcing iOS users to install apps via the app store and by taking a 30 percent cut from app developers, Apple controls a monopoly in which consumers end up paying more than they would in a competitive market.
But Apple v. Pepper, which will be argued the last week of November, doesn’t ask whether or not such a monopoly exists. Instead, it questions whether iPhone buyers are even able to challenge Apple under antitrust law in the first place. Supreme Court precedent says only “direct purchasers” can sue for antitrust damages, and Apple claims that iOS users actually buy apps from developers, not from Apple itself. The ruling could affect how much power consumers have over digital e-commerce platforms, and what counts as a tech monopoly.
This ruling will offer a sense of how the court views antitrust in the tech world in general, and will be of great interest to companies that dominate the industry like Apple, Google, Facebook, and Amazon.
Cover: U.S. Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing-in in the East Room of the White House October 08, 2018 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)