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Chris Geidner @chrisgeidner
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Off to #SCOTUS, where we have arguments in Timbs v. Indiana at 10a over the “excessive fines” clause of the Eighth Amendment and whether its prohibition should apply—or be incorporated—against the states. It’s a case, in part, about asset forfeiture, and has drawn much interest.
Here’s a preview from @AHoweBlogger —>…
#SCOTUS, Nov. 28, 2018.
First take out of #SCOTUS: Person you do not want to be today: Indiana’s SG.
Seriously, though, the excessive fines clause will be incorporated. The only question is whether the court will go further than that in addressing the scope and, if so, how far. The other question is what Alito and Roberts will do.
Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh strongly sided with the pro-incorporation arguments — with Gorsuch and Kavanaugh both going so far as to ask Indiana’s SG whether there really could be an argument against incorporation.
Presumably, Ginsburg also was on board as well, though her questions focused on more narrow issues and did not evince as clear a view on that primary issue. Only Roberts and Alito really pushed back with probing questions to Tyson Timbs’ lawyer, Wesley Hottot.
#ProTip: Your argument is not going well when your *best position* becomes arguing that the justices should consider "chopping up" a right.
And that is, indeed, where Indiana Solicitor General Thomas Fisher ended up today. Before his time at the podium came to a close, questions slowed to a near-halt, which is very unusual at the court. And then, on his rebuttal, Timbs' lawyer was asked no questions.
From the start of Fisher's time at the podium, it was an uphill battle (as he knew it was before it even began), with Gorsuch asking the first questions and quickly circling around to near-disbelief. "Here we are, it's 2018," and we're still debating incorporation, he said.
Kavanaugh then jumped in, suggesting it was "a little late in the day" to be disputing incorporation.
Given the state's argument that asset forfeiture, as an "in rem" proceeding against property and not the person, should be treated differently under the excessive fines clause, Kagan joined in: "Do you have a theory about how we go about dividing up rights?"
The pushback wasn't done. Gorsuch suggested that a ruling against it just as to incorporation, and not as to scope/application, might be the best Indiana could do.

Even after all that, Sotomayor kept going, telling Fisher: "I just don't actually understand your argument."
For more on the briefs and background, here's the @SCOTUSblog page:…
And, we have the transcript of today’s argument:… / Here, for a flavor, is Gorsuch’s first question to Indiana’s SG:
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