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Panel Laments Politicization of Judiciary at High Court Preview

At the San Francisco Bar Association’s downtown headquarters Tuesday, a panel of experts weighed in on the cases they find most interesting, as well as how the newly constituted bench has been affected by the contentious confirmation process of its newest member, Justice Brett Kavanaugh.

(CN) – This year is shaping up to be a busy one for the U.S. Supreme Court: only a month into its oral argument session, the justices have begun tackling a slew of heavy legal questions from excessive fines and double jeopardy to when Congress can hand its power off to government agencies.

At the San Francisco Bar Association’s downtown headquarters Tuesday, a panel of experts weighed in on the cases they find most interesting, as well as how the newly constituted bench has been affected by the contentious confirmation process of its newest member, Justice Brett Kavanaugh.

For Ninth Circuit Judge Marsha Berzon, one high-stakes case is Gamble v. United States, where the high court will decide whether to overrule the double-jeopardy exemption that allows both the state and federal government to prosecute someone for the same crime because they are “separate sovereigns.”

“The perhaps most recent prominent case where this question was critical was the Rodney King prosecution,” Berzon said, noting that the doctrine allowed federal prosecutors to go after the Los Angeles police officers who had been acquitted of state assault crimes for beating King during a traffic stop in 1991.

In this case, Terance Martez Gamble contested his federal gun possession prosecution as double jeopardy, since he had already been convicted and sentenced to a year in prison in Alabama on the same charge.

“He teed up this question from the outset. It was almost a set-up case,” said Berzon.

Berzon added she finds a proposed civil-rights exception to double jeopardy compelling, not only because of the King case but because it allowed the federal prosecution of people previously acquitted of murdering civil rights activists in the 1950s.

Another closely watched case is Timbs v. Indiana, involving criminal asset forfeiture. Indiana authorities confiscated a Land Rover belonging to small-time drug dealer Tyson Timbs because he had used it to transport a few grams of heroin.

UC Hastings Law Professor Rory Little said the case presents an interesting question of whether an in rem forfeiture, or a seizure of property involved in a crime, should be proportional to the crime. Timbs’ lawyers have posited the forfeiture was not proportional since the drugs were worth about $400 and the car is worth $42,000.

The Indiana Supreme Court reversed the trial and appellate courts, which found in Timbs’ favor. It ruled the Eighth Amendment, which prohibits excessive fines to punish criminal behavior, does not apply to the states.

With the swell of criminal fines and forfeitures, a reversal from the Supreme Court would be significant.

“It might be big news if they say in rem forfeitures have to meet the proportionality principle,” Little said, adding it’s pretty surprising the U.S. solicitor general has chosen not to get involved.

The case is set for oral argument on Nov. 28.

Also on Little’s list of impactful cases is Gundy v. United States, a challenge to the rule that Congress cannot delegate its authority to another executive branch agency without providing some guidance on how agencies should use that authority.

The high court heard the case Oct. 3, and the justices asked a lot of questions. The challenge was brought by Herman Gundy, a sex offender indicated in 2013 under the Sex Offender Notification and Registration Act for traveling to New York from Pennsylvania and staying there without re-registering as a sex offender.

In Gundy’s case, the Supreme Court took up the narrow issue of nondelegation regarding the attorney general’s power to apply the sex offender law to Gundy retroactively, since he was convicted a few months before the law took effect.

If the justices find in Gundy’s favor, it will be the first case to use the nondelegation doctrine to strike down federal law since the New Deal era, when Congress butted heads with President Franklin Roosevelt. Some experts fear the court could decide Gundy in a way that drastically limits federal power, but Little said he believed the justices “seemed inclined to uphold.”

Still, the nondelegation doctrine has been seen as a potential tool for the court to enact policy, and judicial activism was a concept raised during Kavanaugh’s political sideshow of a confirmation. On Tuesday, the panelists all seemed to agree the lifting of the veil to show the political machinations behind Supreme Court nominations was a terrible thing for both the court and the country. People like to think that the judiciary is above politics, but Kavanaugh’s confirmation process showed that’s far from true.

At his hearing in September before the Senate Judiciary Committee, Kavanaugh raged that an accusation of sexual assault brought up at the eleventh hour was a conspiracy by Democrats to thwart his nomination. In his opening statement he said, “What goes around comes around.”

Kristin Linsley, a partner at Gibson Dunn who clerked for the late Justice Antonin Scalia, said she lamented this kind of politicization of the court.

“Scalia’s philosophy was that the role of the judiciary should be more limited than it has become. If that were the case, leaving policy to the elected branches, then you wouldn’t have as much focus on the nomination of justices to the Supreme Court. It wouldn’t be a political process,” Linsley said.

“The process was becoming politicized because the court was becoming politicized. The way the general population was looking to the court, the Supreme Court was being looked at as the place where all these things were being decided,” she added. “The way that was exposed in this confirmation hearing, not only by Justice Kavanaugh but some other senators, was very unseemly and unfortunate and I think it illustrated Justice Scalia’s point.”

Scalia was unanimously confirmed by the Senate in 1986, at least partly because Justice William Rehnquist’s appointment to chief justice after the retirement of Warren Burger was so hotly contested.

Berzon said exposure of the process as political was unheard of until Kavanaugh.

“It was at least extremely unfortunate that – either purposely or out of anger – the last hearing essentially pulled the veil off of the political underpinnings and characterized the process as an expressly partisan one,” she said. “That isn’t to say it hasn’t become partisan and that’s unfortunate, but on the other hand I think the veil is important for the independence and function of the courts. I’ve never seen something like that happen before and I thought it was extremely unfortunate.”

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